“The needs of families are similar. They want a child. Surrogacy is just another route to get there.”
Kevin Kenney has helped create hundreds of families through adoption during the past 20 years. Now, with 10 years of experience in surrogacy law, he is continuing to help hopeful parents build their families as a leading Kansas City surrogacy attorney.
In this article, learn more about the legal surrogacy process and the services Kevin offers to parents pursuing surrogacy in Kansas City.
The Legal Surrogacy Process
There are two main parts of the legal surrogacy process: the surrogacy agreement before the baby is born, and an adoption or determination of parentage after the baby is born. In every surrogacy case, this means that families need an attorney they can trust throughout the entire process.
Below, learn about the services Kevin offers to help complete your surrogacy from start to finish.
Pre-Pregnancy: The Surrogacy Contract
The surrogacy agreement, or surrogacy contract, is one of the first and most important parts of every surrogacy process. It is an important roadmap that helps set each party’s expectations prior to the beginning of the surrogate pregnancy.
Each surrogacy agreement will vary depending on a number of circumstances, but every contract should include a few of the same key elements:
- A clear definition of each party and their current legal relationship to the child as well as their ultimate legal relationship to the child
- The need for counseling services and psychological screening for all parties involved
- Compensation, if any, for the surrogate
- Each party’s roles and responsibilities during the pregnancy
- Expectations for after the baby is born, including the paperwork that will be signed by the surrogate and her husband, if applicable, to declare the intended parents as the child’s sole legal parents
The surrogacy contract is generally drafted and negotiated between the attorneys representing each party. It is important to work with an experienced attorney throughout the contract drafting and negotiation process to ensure all parties’ rights and responsibilities are clearly outlined and everyone’s interests are fairly represented.
Once everyone agrees to the terms in the surrogacy agreement and signs the contract, the embryo transfer and surrogate pregnancy can begin.
After Birth: Establishing Parental Rights
Following the baby’s birth, additional proceedings are necessary to determine the child’s legal parents, either through a parentage action or a stepparent adoption. The process for determining parentage varies based on the type of surrogacy and the state where the surrogacy is taking place.
There are two main types of surrogacy: gestational and traditional.
- Gestational Surrogacy: Gestational surrogacy is the most common type of surrogacy in the United States. In this type of surrogacy, the intended parents use their own genetic materials (or those from a donor) to create an embryo that is carried by a surrogate who is genetically unrelated to the child. When both intended parents are the biological parents of the child, an adoption is not required to establish their legal rights. Instead, the family will need to complete a determination of parentage action following the baby’s birth. However, if donor eggs or sperm are used to create the embryo, a stepparent adoption may be required for the genetically unrelated parent.
- Traditional Surrogacy: In traditional surrogacy, the surrogate not only carries the child — she also acts as the egg donor. Because she is the biological mother of the baby she carries, her parental rights will need to be terminated following the baby’s birth, and the unrelated intended parent will have to complete a stepparent adoption.
Below, learn more about the process to establish a surrogate-born baby’s legal parents through a determination of parentage or a stepparent adoption.
Determination of Parentage
Intended parents who complete a gestational surrogacy will need to establish their parental rights by filing a parentage action. A court order determining parentage may be issued before the child is born as a pre-birth order or after the child’s birth as a post-birth order.
Obtaining a pre-birth order provides clarity to hospital staff about who the child’s legal parents are and allows the original birth certificate to reflect the intended parents’ names without having to make an amendment. While a pre-birth order may speed up the process of establishing legal parental rights for the child’s intended parents, it is entirely possible to complete an equally successful surrogacy with a post-birth order.
Missouri law does not allow pre-birth orders, and all intended parents will need to obtain a post-birth order determining parentage after their baby is born. Pre-birth orders are allowed in Kansas but are not always issued — it is up to the discretion of the judge to grant a pre-birth order or not.
Whether your parentage is determined before or after your child’s birth, Kevin can provide the services you need to ensure your surrogacy is completed safely and legally and that you are named as your child’s sole legal parents.
A stepparent adoption is required in any surrogacy in which one intended parent is not biologically related to his or her child. This process is common following a traditional surrogacy or a gestational surrogacy in which a donated egg is used.
For example, if a donor egg is fertilized by the intended father’s sperm to create the embryo, the intended mother (or other intended father, in the case of a same-sex surrogacy) will need to complete a stepparent adoption because he or she has no biological connection to the child.
The adoption process in surrogacy is very similar to any other stepparent adoption. An attorney will need to get consent from the egg donor to terminate her parental rights. When an anonymous egg donor is used and obtaining consent is impossible, the attorney will give notice of the adoption proceedings to the egg donation agency, who should then notify the egg donor.
If the egg donor signs consent or fails to appear at the finalization hearing after receiving notice of the stepparent adoption, her rights are terminated and the stepparent adoption is finalized, officially establishing the biologically unrelated intended parent as the child’s legal mother or father.
Working with a Surrogacy Attorney
Surrogacy is still an emerging practice with fairly unsettled laws, making it more complicated than the legal adoption process. Every surrogacy involves legal contracts as well as legal actions following the baby’s birth to establish the intended parents’ legal connection to their child.
As a result, every surrogacy needs a good lawyer with an extensive understanding of state laws and the surrogacy process. There are many nuances in each state’s laws, as well as circumstantial issues in every surrogacy arrangement, that need to be addressed in the surrogacy agreement and throughout necessary legal proceedings.
Kevin Kenney has an extensive background representing intended parents and surrogates in both Kansas and Missouri. Contact him today to discuss your circumstances and learn more about completing your surrogacy in Kansas City.