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How to Protect Your Parental Rights in LGBTQIA+ Surrogacy

Protecting your parental rights as an LGBTQ couple entering surrogacy is crucial. Keep reading to learn more about how to protect you and your child.

So, you and your partner have decided to take the leap into becoming parents. Congratulations! This is an exciting new chapter in both you and your partner’s life that was not made lightly. We understand how excited you must be for this next chapter and nervous you might be if you are considering becoming parents through surrogacy. The most prominent concern on your mind is most likely protecting your child and your rights to your child throughout the course of the surrogacy process, as biologically only one of you will be the parent of your child. At Trust & Will, we understand the complicated legal implications you may face as you embark on your journey to parenthood. 

At Trust & Will, a leader in online estate planning services, we want to do everything we can to help protect your parental rights in LGBTQIA+  surrogacy and help ease some of your worries. Becoming a new parent brings on a whole list of concerns, and we do not want your parental rights to have to be one of them. That is why in this article we are covering everything you need to know about how to protect your parental rights in LGBTQIA+ surrogacy. By the end of this article, you will know the exact steps you need to take to help ensure you will not be separated from your child. 

Keep reading to learn more about the following topics in relation to how to protect your parental rights in  LGBTQIA+  surrogacy:

  • Why You Will Want to Protect the Parental Rights of Both Parents Early On

  • Pre-Birth Order and Post-Birth Order Surrogacy

  • Adoption 

  • Nomination of Guardianship Documents 

Why You Will Want to Protect the Parental Rights of Both Parents Early On

When it comes to surrogacy for same-sex couples, only one partner will have immediate biological rights over your child, as you will also need a donor to create your child. While you may not immediately be too worried, as at least one of you will have parental rights from the beginning, you will need to clarify parental status and rights sooner rather than later. For example, it is an unfortunate reality that you or your partner may find yourself in an accident that either leaves you incapacitated or deceased. Should this happen and your spouse is the one with parental rights, it can pose additional challenges for you and/or your surviving family members. Additionally, your partner could face legal obstacles when it comes to making decisions on behalf of your child. 

While you may assume that having both of your names on the birth certificate is all the protection you need to safeguard your parental right, this is unfortunately not always the case in some jurisdictions. Laws can be very different from state to state, so it is especially important to pay attention to your state’s laws on the matter. You will want to begin looking into additional legal measures to protect your parental rights now so that you are prepared. 

Pre-Birth Order and Post-Birth Order Surrogacy

The best method to protect the parental rights of both you and your child in  LGBTQIA+  surrogacy is through pre-birth order or post-birth order surrogacy documents, both of which will be covered here. 

Pre-Birth Order Surrogacy

Pre-birth order surrogacy documents are documents that you petition to the court before the birth of your child that will grant both you and your partner parental rights of your child, regardless of whether or not you or your spouse are biologically related to your child. This is also a document that both you and your surrogate will need to agree upon in order for the court to grant you permission for a pre-birth order document. Additionally, it is important to note that not every state recognizes pre-birth order surrogacy documents. You will want to ensure that you research the laws within your state before pursuing a pre-birth order surrogacy. 

One of the biggest pros of choosing to obtain a pre-birth order surrogacy document is that it will grant you and your spouse parental rights to your child before they are even born. This means that right off the bat you will be able to make decisions for your child and advocate for them when they are born. Instead, you will be able to make medical decisions immediately. 

Post-Birth Order Surrogacy

Post-birth order surrogacy documents are very similar to pre-birth order surrogacy documents, except they are obtained after the birth of your child. They ultimately give you the same parental rights as pre-birth order documents. However, the drawback to post-birth surrogacy documents is that you will not have immediate parental rights upon the birth of your child. As with pre-birth order surrogacy documents, it will be important to review your state laws, as they will differ from state to state. 


While the best option may be pre-birth order or post-birth order surrogacy, it is possible that these options may not be appropriate for you and your partner. The next best option you will want to consider is legal adoption. As with pre-birth order and post-birth order documents, you will gain full parental rights to your child. However, the drawback of adoption is that it is much more time-consuming and costly for you and your partner. 

Nomination of Guardianship Documents

If you and your partner are for some reason struggling to obtain parental rights for one of you, having a backup plan of Nomination of Guardianship documents can be a great resource to protect your child. Nomination of Guardianship documents allows you to legally name your partner as the legal guardian of your child in the event that you can no longer perform your guardianship responsibility. This can be a great option to ensure that your family does not get separated while you work through legal paperwork. 

Trust & Will understands how important it is to protect your family no matter what circumstances may arise. With our online estate planning services, we help you plan for the unexpected. From your computer, you can create your Will, Trust-Based Estate Plan, and Nomination of Guardianship documents. 

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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.