Under a valid gestational surrogacy arrangement in a state that recognizes it, the intended parents are the legal parents of the child, and the surrogate has no parental rights or responsibilities to that child, providing that the proper legal work is done to establish the intended parents as the legal parents. Legal parentage is not established automatically - it is created by two things working together: a written gestational carrier agreement that sets out what each side commits to, and a court order that establishes who the child's legal parents are. Because parentage law is set state by state, the principles below describe how this works in general; your specific rights depend on where the child is born. This is also why every serious surrogacy journey is built around competent and experienced surrogacy legal counsel from the start rather than reviewed for legal problems after the fact.
At Worldwide Surrogacy Specialists, that legal foundation is structural. The agency was founded by Victoria T. Ferrara, a practicing reproductive attorney with more than 30 years of experience who argued the landmark surrogacy parentage case Raftopol v. Ramey before the Connecticut Supreme Court. The sections below explain what the intended parents, the surrogate, and the child are each entitled to under both the agreement and the law.
How is legal parentage established in gestational surrogacy?
Legal parentage in gestational surrogacy is established by a court order, not by giving birth and not solely by genetics. In gestational surrogacy the surrogate is not genetically related to the child she carries, and many surrogacy parentage statutes recognize the intended parents - including a parent who has no genetic connection to the child - as the legal parents. Depending on the state, that order takes one of two forms:
• A pre-birth order is entered before the baby is born. The state's vital records office is directed in advance to place the intended parents' names on the birth certificate, so the intended parents can exercise their rights and make medical decisions for the newborn from the moment of birth. States such as Connecticut and many other states honor pre-birth orders.
• A post-birth order does the same thing but is entered sometime after the birth. Some states that permit surrogacy do not allow pre-birth orders, and a few still route intended parents through a confirmatory or step-parent adoption instead. An example is Florida where the legal parentage proceedings are commenced before the birth and then confirmed immediately after the birth.
Without an appropriate order, a hospital could list the surrogate as the mother on the birth certificate, which then has to be corrected - the exact situation the parentage process exists to prevent.
The reason a non-genetic intended parent can be a legal parent at all traces back to cases like *Raftopol v. Ramey*, in which the Connecticut Supreme Court held that a person who is neither the biological nor the adoptive parent of a child can become that child's legal parent through a valid gestational agreement. Connecticut later codified and broadened this protection in the Connecticut Parentage Act, effective January 1, 2022, under which each intended parent is a parent of the child by operation of law and the surrogate is not. Many states have adopted their own versions of the Uniform Parentage Act (2017), which entitles the parties who follow its requirements to a court order of parentage - an order that can be obtained during the pregnancy but only takes effect at birth.
The landscape is still shifting. In 2024, Michigan enacted the Assisted Reproduction and Surrogacy Parentage Act, which took effect in 2025 and made Michigan the most recent state to legalize compensated gestational surrogacy, ending its former status as the only state where entering such an agreement was a crime. Because the rules genuinely differ from one state to the next, the specific type of order you will need is a state-by-state question - the full breakdown lives on the U.S. surrogacy laws by state hub.
What rights and responsibilities do the intended parents have?
The intended parents' central right is to become the child's legal and custodial parents, with their names on the birth certificate, once a valid agreement and the appropriate court order are in place. That right comes bundled with responsibilities that are just as binding:
• They are responsible for the child. Once the arrangement produces a child, the intended parents are that child's legal parents and cannot use the agreement to walk away from that responsibility. This is a genuine obligation, not a formality - if the surrogate declines a requested termination, for example, the intended parents still assume custody of and responsibility for the child.
• They document how the embryo was created. The agreement records whether the embryo was created with the intended parents' own gametes, a donor egg, donor sperm, or a donated embryo, and confirms that any donor has released all parental claims. This is what protects the intended parents' status against a later challenge.
• They carry the financial responsibilities they agreed to - the surrogate's agreed compensation and pregnancy-related expenses, and the child's medical costs. The Uniform Parentage Act (2017), for instance, requires the agreement itself to spell out how the intended parents will cover the surrogate's expenses and the child's medical care.
Because these rights and responsibilities are what the whole arrangement turns on, they are set down explicitly in the contract rather than left to assumption. How that contract is structured is covered in What Is a Gestational Carrier Agreement?.
What rights and responsibilities does the surrogate have?
A surrogate's rights matter as much as the intended parents' rights, and one of the defining features of surrogacy in the United States is that the surrogate retains real ones. Her core rights include choosing the intended parents she is willing to carry for, choosing her own physicians, and - most importantly - making the decisions about her own body and medical care throughout the pregnancy and birth.
Her responsibilities, in turn, are the commitments the intended parents are relying on:
• Protecting the pregnancy by staying healthy, following medical guidance, taking the medications that prepare her body for the embryo transfer, and keeping her medical appointments.
• Cooperating with the legal process, including the documents and court steps needed to establish the pre-birth or post-birth order that names the intended parents.
• Releasing all parental and custodial claims to the child. Under a valid gestational agreement, she is not the child's legal parent and does not intend to be - a point that, for most surrogates, aligns with their own wishes, as many already have families of their own.
Her surrogacy compensation and any additional benefits are defined in the surrogacy agreement rather than assumed. What a surrogate is paid is a separate topic covered on the surrogate compensation page.
Who makes medical decisions during the pregnancy?
The surrogate makes the decisions about her own body and medical care - that authority cannot be signed away. The American Society for Reproductive Medicine's ethics opinion on the gestational carrier states plainly that the gestational carrier is the sole source of consent for her own medical care from the embryo transfer through prenatal care, labor, delivery, and aftercare. No contract can compel a person to undergo or forgo a medical procedure against her will.
That does not make the agreement's medical provisions meaningless - it defines what they actually do. A well-drafted gestational carrier agreement records how the parties intend to approach the decisions that could arise, so that everyone understands each other's values before there is a pregnancy to navigate. Those provisions typically address matters like:
• How many embryos are transferred, and how the parties would approach a multiple pregnancy.
• What the parties intend if prenatal testing reveals a serious fetal abnormality, or if selective reduction is medically raised.
• Who the agreed medical providers are, which both sides settle on before the transfer.
The agreement expresses intention and shared expectations. It does not override the surrogate's legal right to decide about her own body. If a decision were to depart from what the agreement contemplated, the consequences are contractual - for example, affecting compensation - rather than a power to force a medical outcome. This is precisely why alignment on values, chosen carefully and discussed openly before matching, matters more than any clause: the goal is a match where these questions are unlikely to divide the parties in the first place. How these medical provisions are written into the contract itself is covered in What Is a Gestational Carrier Agreement?.
How do unmarried and same-sex intended parents establish parentage?
Unmarried intended parents and same-sex couples establish parentage the same way any intended parents do - through a valid gestational agreement and a court order - and in states with modern parentage laws they have equal access to it regardless of marital status, sex, or genetic connection. Connecticut's Parentage Act, for example, was written to give every child a clear path to legal parentage, including children of unmarried, same-sex, and non-biological parents, and to do so through parentage rather than adoption.
Two U.S. Supreme Court decisions sit underneath this. *Obergefell v. Hodges* (2015) established the right of same-sex couples to marry and to the benefits states link to marriage. Two years later, in \*Pavan v. Smith\* (2017), the Court held that a state which lists a birth mother's spouse on the birth certificate must extend the same treatment to a same-sex spouse - birth certificates are not merely a record of biology.
The protection is still uneven across the country. Some states' parentage statutes have not caught up, and a court in one state is not required to honor another state's parentage order the way it must honor an adoption, which is entitled to recognition in every state. For that reason, some non-biological and same-sex parents are advised to obtain a confirmatory or second-parent adoption in addition to a parentage order, as a further layer of protection that travels with the family everywhere. Whether that step is worthwhile in your case is a state-specific legal question. WSS's coverage of family-building for gay intended parents is in Gestational Surrogacy and Gay Parenting, and the state rules are on the U.S. surrogacy laws by state hub.
Why does each party have their own attorney?
The surrogate and the intended parents are each represented by their own independent attorney, and this is a requirement of the process, not a courtesy. The Uniform Parentage Act (2017) and the ASRM's ethics guidance both call for the gestational carrier to have separate, independent legal counsel regarding the agreement. Independent representation on each side means the contract is negotiated between two parties who each genuinely understood and agreed to it - which is part of what makes the agreement, and the parentage order that follows, hold up. At WSS, the legal work sits inside the agency rather than being referred out, which is a direct consequence of the agency being led by a reproductive attorney.
How does the gestational carrier agreement fit with the parentage order?
The gestational carrier agreement and the parentage order are two different instruments that do two different jobs. The agreement is the contract between the intended parents and the surrogate - it defines expectations, medical intentions, compensation, and each side's rights and responsibilities before the transfer. The parentage order is the court judgment that legally establishes who the child's parents are. You need both: the agreement governs the relationship during the pregnancy, and the order settles parentage at or after birth. The agreement is covered in full in What Is a Gestational Carrier Agreement?, and the surrogacy process end to end is on the intended-parent process page.
Frequently asked questions
Does the surrogate have any parental rights to the baby?
Under a valid gestational surrogacy agreement in a state that recognizes it, no. The intended parents are the legal parents, and the surrogate has no parental rights or responsibilities to the child. She does, however, keep full authority over her own body and medical care during the pregnancy.
Can intended parents change their mind and refuse the child?
No. Once the arrangement produces a child, the intended parents are that child's legal parents and are responsible for the child. The agreement is designed to make that responsibility clear and binding, not to provide a way out of it.
Do intended parents have to adopt the child?
In states with modern parentage laws, no - the intended parents are recognized through a parentage order without an adoption. In some states, or in some family circumstances, a post-birth order or a confirmatory adoption may still be used. Which applies to you depends on the state where the child is born. One caveat to this is where a non-genetic parent becomes a named parent on a birth certificate because of being married to the genetic parent, it is recommended that this non-genetic parent go through a co-parent or confirmatory adoption in order to transform the presumption of parentage into a legal judgment of parentage. This is especially important for LGBTQ+ parents since marriage equality may be overturned by the U.S. Supreme Court.
What happens if the surrogate and intended parents disagree about a medical decision?
The surrogate retains the legal right to decide about her own body and medical care; no agreement can force a medical procedure on her. Where a decision departs from what the agreement contemplated, the consequences are contractual rather than a power to compel an outcome. This is why value alignment is settled during matching, before a pregnancy exists.
Does Worldwide Surrogacy Specialists handle the legal and parentage work?
Yes. Because WSS was founded and is led by a practicing reproductive attorney, the contract and parentage work are handled by the agency's legal team from the start, rather than reviewed after the fact or referred to an outside firm.
Where this leaves you
The through-line of every section above is that surrogacy rights are only as strong as the legal work behind them: the intended parents' parentage, the surrogate's protections, and the child's clear legal status all depend on a valid agreement and the right court order in the right state. That is the part of the journey where an attorney-led agency changes the outcome rather than the paperwork. If you want to understand how your own rights would be established - including in your state - you can book a consultation with the WSS team.
Book a consultation with our team → /parents/consultation
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