Clarifying Misconceptions: The Law of Gestational Surrogacy in Vermont

pregnant person holding stomach and holding pink flowers

I recently received an e-mail from intended parents I was representing in a gestational surrogacy arrangement. Their carrier is due in the fall, and they were hearing some surprising statements from the hospital birthing center staff. The hospital seemed to be having a hard time understanding that the carrier was not the biological parent and thought that she would have to surrender parental rights at the time of birth. They also would not allow the intended parents to attend the carrier’s medical appointments because they were not her spouse. While I thought that by now all hospitals in Vermont would be familiar with gestational surrogacy, I quickly offered to provide a legal primer on the subject, so here it is.

Gestational surrogacy has an entirely different legal construct than adoption. In an adoption, the biological parents are also the legal parents of the child. When the child was conceived, the parents did not intend that someone else would be raising their child. They have full parental rights and responsibilities for the child unless and until they either voluntarily relinquish those rights after the birth, or have their rights terminated involuntarily through a rigorous court process. With surrogacy, however, the parties intend from the very beginning of the process that the woman who carries the child will not be the legal or emotional parent.

First, some explanation of the terminology is in order. While gestational surrogacy has been happening in Vermont for more than twenty years, it did not receive legal recognition until the Vermont Parentage Act was passed in 2018. I helped write the bill. The term “intended parent” includes any person who manifests the intent to be legally bound as a parent of a child resulting from assisted reproduction, including a gestational carrier agreement. A “gestational carrier” is a person who enters into a gestational carrier arrangement to bear a child conceived using the gametes of other persons. These gametes can be those of the intended parents, a combination of gametes from one intended parent and a donor, or from a donated embryo with no genetic connection to any of the parties. It is the intent expressed in a gestational carrier agreement that controls parentage, and not the genetic makeup of the embryo.

A valid gestational carrier agreement is an essential element of a gestational carrier arrangement. It ensures that the intent of the parties will be legally recognized, and that a parentage order can be obtained prior to the birth of the child. The contract must be in writing and be completed prior to any medical procedures other than the initial screening. Both the intended parents and the gestational carrier must be represented by independent legal counsel. At least one of the parties must reside in Vermont. The agreement must not bind the parties for more than one year, and if the parties are married their spouses must sign the agreement as well. The agreement must specifically state that the carrier agrees to undergo assisted reproduction and attempt to carry and give live birth to a child, that she has no claim to parentage of any child born as a result of the agreement, and that she acknowledges the exclusive parentage of the intended parents of any resulting child.

Once a gestational carrier becomes pregnant, the parties should file a petition for a pre-birth order. I generally recommend starting this process after the first trimester. Petitions are filed in the probate division of the Vermont Superior Court in the county in which the child will be born. The petition does not require a court appearance by any party and is processed on the paperwork alone. Once the court signs this order, the intended parents will be legally recognized as the parents of the child immediately upon birth. With this order, the intended parents’ names will be placed on the original birth certificate. I also notify Vermont Department of Vital Records prior to the birth, so that they are aware of the impending surrogacy delivery and can be sure that the gestational carrier’s name is not inadvertently placed on the birth certificate as a parent of the child.

Gestational carrier arrangements are a legally secure way to build your family. Sometimes, friends and family members volunteer to be a carrier in what we call a “compassionate carry” arrangement. Other times intended parents use experienced matching programs to screen and match them with qualified gestational carriers. In either case, it is essential that the parties engage attorneys experienced in assisted fertility law and licensed in the appropriate State. Michelle A. Tarnelli, Esq. and I are licensed in Vermont, and we are both fellows in the Academy of Adoption and Assisted Fertility Attorneys. We are the only attorneys based in Vermont who carry this credential. We have a passion for helping families through the legal process of assisted reproduction and surrogacy. Give us a call or e-mail us with any questions. We’re here to help!

Kurt M. Hughes, Esq.