The surrogacy process can be a bit confusing. While it is primarily experienced as an emotional journey on the part of the intended parents, it’s actually a legal and medical process, too.

All of the little nuances associated with surrogacy law and parental rights can come as a surprise to some intended parents. That’s why it is so important to work with an agency — like American Surrogacy — that can ensure your process follows all the necessary legal requirements.

One potential requirement that catches intended parents off guard is adoption after a surrogacy birth.

Wait — adoption? Isn’t that a totally different family-building option?

Yes, it is. But, due to some state laws, there is a chance you will have to legally adopt your child after birth.

If you find yourself in this situation, don’t panic. It’s totally normal. We’ve created this guide to explain how adoption after birth in surrogacy works, why it might be necessary, and how you can ensure that yours is completed successfully.

What Is an Order of Parentage?

Parentage is a legal term that refers to legal rights to parent a baby. So, an order of parentage is a legal document that declares which people have those parental rights for the newborn child in the surrogacy process.

While laws differ from state-to-state, most laws make an assumption that the woman who gives birth to the baby is the child’s mother. In surrogacy, this is clearly not the case. So, an order of parentage is necessary to set the record straight and grant parental rights to the intended parents.

In many instances, this order can be secured before birth and is appropriately known as a pre-birth order. Your surrogacy agency and attorney will help you file the pre-birth order so that parental rights are already taken care of when the baby is born.

However, some states do not allow for pre-birth orders, and that’s where adoption comes into play.

How Adoption After Birth in Surrogacy Works

Instead of obtaining a pre-birth order, some intended parents will need to work with their agency and attorney to file a post-birth parentage order. Within surrogacy, this is the term we use for this action. But in the eyes of many states, a “post-birth parentage order” is, legally speaking, an adoption.

How does this work? Once again, it can depend on the laws of your state. Generally, the surrogate must execute her official consent to adoption after the child is born. This involves either a written consent to the adoption (witnessed and signed by a public notary) or a petition for relinquishment of parental rights that is filed by the attorney.

During this period of waiting for the official post-birth order of parentage, the surrogate is considered the legal parent in the eyes of the state. But, this doesn’t mean that the intended parents cannot act as the parents they are. You can still hold the child and personally assume your role as mom or dad while the state sorts out the legal roles.

Additionally, it’s important to know that while their may need to be a post-birth adoption order, the surrogate cannot just “keep” the child if she has a change of heart. The surrogacy contract is a binding legal agreement that both parties will have already signed. That contract makes any worst-case scenario fears impossible.

Why Adoption After Birth in Surrogacy is Necessary

Ultimately, it comes down to state laws. Some states do not allow pre-birth orders to be filed. If you live in one of these states, your attorney will need to help the surrogate follow the required adoption laws after birth, which can involve a waiting period and mandatory counseling before officially signing the consent to the adoption.

This may seem confusing. Why would the surrogate have to receive counseling or wait for a certain amount of time?

Keep in mind that, in the eyes of the state, this post-birth surrogacy order is actually an adoption. Adoption laws were written to protect the rights of prospective birth mothers, who are in totally different situations than a surrogate. The waiting period and counseling are in place to ensure that these women are fully informed before making their choice in an adoption process. It just so happens that post-birth orders in surrogacy may have to follow these same steps.

Once again, it’s important to stop and realize that this is very common. Many surrogacy placements go through post-birth orders. There’s no reason to be worried if you have to take this additional step due to your state’s laws. Everyone is on the same page, and your process will be completed successfully.

Who Can Help with Adoption After Birth in Surrogacy

Your surrogacy process will include several different professionals. When it comes to pre- and post-birth orders of parentage, your most important resources are your surrogacy attorney and agency. These legal professionals and counselors will help you understand what’s happening, ensure that all legal requirements are met, and guide you to the completion of a successful surrogacy process.

Would you like to speak with a specialist today about this part of the process or any other questions you have? Contact us online at any time or call 1-800-875-BABY (875-2229). We’d be happy to help you understand the process and get started on your surrogacy journey.