If you are considering becoming a surrogate for someone you know or are considering working with an agency to assist a couple in need, your decision is not coming lightly, and should not be made without being fully informed about the journey ahead.
A surrogate may be married or single. There are two presumptions in Ohio with regard to parenthood: a mother who gives birth to a child is presumed to be the mother; and, the husband of a woman who gives birth to a child is presumed to be the father. Having a knowledgeable surrogacy attorney will prevent this determination, and will protect the future of the surrogate and her husband (when married) from the obligation for a child born through a surrogacy agreement. As a matter of policy, I do not match surrogates with intended parents.
There are two types of surrogates: Gestational Surrogates and Traditional Surrogates.
Gestational Surrogates: If you choose to become a gestational surrogate, you will be undergoing the implantation of an embryo(s) that has been created using eggs and sperm. The eggs may be from the intended mother, but may also come from a donor. The sperm may be from the intended father, but may also come from a donor. Further, the embryos themselves may have been adopted by the intended parents. The intended parents may not be married, and could be a same-sex couple.
The laws regarding surrogacy have been developed in the state of Ohio allowing for great assurance that the intended parents*** will be deemed the “parents” of a child born under a gestational surrogacy agreement without having to go through an adoption process. This is not necessarily the case in Traditional Surrogacy.
*** The law in Ohio does not currently allow for same-sex intended couples to both become the “parent” of a child on the original birth certificate. However, if a same-sex couple is married in a state in which marriage is approved, AND if the state allows for second parent adoptions, Ohio will correct the birth certificate after the second parent adoption to reflect both parents names.
The parties to a gestational surrogacy need a contract outlining their rights and relationship to the child(ren) born as a result of the surrogacy. The contract should be prepared prior to beginning the medical process.
If a pregnancy occurs, you will need to have legal documents prepared to establish the biological and genetic parents of the child(ren). This process should begin at the end of the first trimester so that a birth certificate can be issued at the time of birth, indicating the biological parents’ names.
Traditional Surrogates: In a traditional surrogacy, the surrogate’s own egg is fertilized with either the intended father‘s sperm or donor sperm. Ohio requires that inseminations occur at a physician’s office.
The resulting child is the biological child of the surrogate, but is the intended child of the intended parents. The law in Ohio regarding traditional surrogates favors the biological parent, and an adoption by the intended mother is usually required, except in Summit County.
The parties to a traditional surrogacy need a contract outlining their rights and relationship to the child(ren) born as a result of the surrogacy. The contract should be prepared prior to beginning the medical process.
If a pregnancy occurs, you will need to have legal documents prepared to establish the father of the child, and when possible, the intended mother. This process should begin at the end of the first trimester so that a birth certificate can be issued at the time of birth, indicating the biological parents’ names (and when possible, the intended parents‘ names). At this time, all surrogate births that occur in Summit County (Akron, Ohio), with a valid surrogacy contract, result in the intended parents’ names being placed on the birth certificate.***
***This does not apply to same-sex couples.