What Legal Documents Do I Need for a Surrogacy Agreement in SC?

Whether you are growing your own family or helping others realize the dream of parenthood as a surrogate, the surrogacy agreement forms the legal foundation of your relationship. Because South Carolina lacks comprehensive surrogacy legislation, courts rely on the surrogacy agreement to determine the rights and responsibilities of everyone involved. A well-drafted surrogacy agreement documents the parties’ intentions and helps ensure a positive surrogacy experience for everyone involved.

Brinkley Law Firm, LLC, works with intended parents and surrogates throughout South Carolina to prepare surrogacy agreements designed to secure the legal rights of the intended parents and protect the surrogate’s best interests. Led by founding attorney Stephanie Brinkley, the Immediate Past Chair of the American Bar Association’s Committee for Assisted Reproduction Technology and a Fellow with the Academy of Adoption and Assisted Reproductive Attorneys, Brinkley Law Firm helps individuals and families navigate surrogacy with compassion, care, and clarity.

What Is a Surrogacy Agreement and What Should It Include?

A surrogacy agreement is a binding contract that establishes the legal rights and responsibilities between a surrogate and the intended parents. The agreement is prepared by the attorney for the intended parents. It should:

• Establish that the intended parents will be recognized as the child’s sole legal parents and identify the process for placing the intended parents’ names on the child’s birth certificate.
• Acknowledge that the surrogate affirms the intended parents’ parental rights, custody, and genetic connection to the child.
• Affirms that the surrogate is not receiving any form of government assistance.
• Define the financial terms, including compensation, reimbursements, and responsibilities for medical bills and insurance.
• Establish medical and lifestyle expectations for the surrogate, such as attending medical appointments and following prenatal restrictions, as well as contingency plans for complications or a multiple pregnancy.
• Ensure that the surrogate has bodily autonomy to make medical decisions.
• Determine the delivery details and who is allowed in the hospital room.
• Describe how and how frequently the parties will communicate with one another during the pregnancy.

Insurance Requirements for Surrogacy

Medical costs are a significant part of the surrogacy journey. A thoughtfully prepared surrogacy agreement should address how the surrogate’s medical bills will be covered during the journey. If her policy excludes coverage for surrogacy pregnancy, the surrogacy agreement should specify that the intended parents are obligated to purchase a separate insurance policy or a surrogacy-specific maternity policy. Additionally, the intended parents are required to purchase a life insurance policy to protect the surrogate’s family interests.

Legal Clearance: A Mandatory Step

Legal clearance is the final requirement after the execution of a surrogacy agreement which is required before medical surrogacy procedures can begin. In South Carolina, the intended parents and the surrogate must both have independent legal counsel. The intended parents’ legal counsel drafts the surrogacy agreement, which is then reviewed by the surrogate’s attorney. Once the legal framework is in place and all parties have signed the surrogacy agreement, the attorneys will issue a “legal clearance” letter that authorizes the fertility clinic to schedule the embryo transfer.

Pre-Birth Order

Once a pregnancy is confirmed, in South Carolina the intended parents must secure a pre-birth order that establishes them as the sole, legal parents of the child and instructs the hospital and the South Carolina Department of Public Health and Department of Vital Records on how to process Vital Records forms.

The pre-birth order provides certainty for the intended parents and helps avoid delays and complications in establishing parental rights after the child is born. Failure to work with a knowledgeable surrogacy attorney could require the intended parents to go through an adoption process, which can create unnecessary and avoidable emotional and legal stress.

For surrogates, the pre-birth order avoids legal complexities around the child’s parentage, medical authorization capacity, and financial responsibilities for the baby’s hospital bill.

Post-Birth Order

A post-birth order is issued after the surrogate gives birth. It legally confirms the parental rights of the intended parents and authorizes the state to issue a birth certificate naming the intended parents as the child’s only legal guardians.

How a South Carolina Surrogacy Attorney Can Help

Navigating surrogacy without legal counsel is challenging, if not impossible. Our skilled and experienced surrogacy attorneys provide invaluable support by drafting and reviewing surrogacy agreements, ensuring compliance with state laws, and addressing any disputes that may arise. We also assist with pre-birth and post-birth orders and manage relationships between intended parents and surrogates to help ensure your surrogacy journey proceeds smoothly and ethically.