What If I Give Birth Out Of My Home State?
There is a lot to think about when making the amazing and generous decision to be a gestational surrogate! How do I choose an agency that’s right for me? Am I up for all those self-injections? Can I still travel??
Why The Travel Restrictions?
It’s likely that the Gestational Surrogacy Agreement – the contract you enter into between you and the intended parents prior to any pregnancy –will include travel restrictions. These restrictions may prohibit you from leaving your home state after a certain gestational week of the pregnancy (often starting 24 gestational weeks or later) or limit how far you can travel from your home or the planned delivery hospital (such as no more than 100 miles during the last trimester). These travel restrictions are for a couple of different reasons.
Recognition of the Intended Parents as the Legal Parents. Surrogacy laws vary significantly from state to state. Your home state laws might be supportive of your surrogacy arrangement, while the next state over may be less supportive or have different legal requirements. Typically, a court order of parentage is obtained in your home state recognizing the intended parents as the legal parents of the child, and you without legal rights or obligations to the child. That court order, while valid and recognized in your home state, may not be recognized and followed in another state without further legal steps. If you were to travel out of state and deliver there, the intended parents may not be recognized as the legal parents of their child upon birth and they may not have the legal rights to care for or make medical decisions for their child.
Medical Costs and Insurance. Another reason for travel restrictions concerns access to medical care, including care that is covered by your insurance policy. Because out-of-network medical care can be significantly more expensive than in-network medical care, it is, of course, preferable to obtain care, when possible, from in-network providers. When traveling a significant distance from home, in-network providers may be harder to access. That likely means any unexpected out-of-state medical care while traveling will be out-of-network and significantly more expensive than if you had stayed close to home.
Logistics. If the intended parents are not local to you, they will probably be making detailed travel plans well in advance of any delivery to be near you for baby’s arrival. These plans will likely include where they are staying (hotel, Airbnb), how they are getting around, and plans for the supplies and resources they will need to care for their child. If the birth unexpectedly happens somewhere other than the planned delivery location, the intended parents may be back to square one with figuring out and paying for all the logistical pieces.
So What Does Happen If I Give Birth In A Different State?
Not surprising, the answer depends on the specifics of your situation – including your home state and where you give birth. It’s possible that the unplanned birth state may recognize the court order recognizing the intended parents as the legal parents of their child. However, some states will not recognize an out-of-state court order without further legal action. Colorado, for example, by law, considers an out-of-state surrogacy parentage court order invalid until that order has been registered in a Colorado court of competent jurisdiction. Meaning, the attorneys need to complete another legal process in Colorado to have a non-Colorado surrogacy parentage order recognized within Colorado.
So if you were to accidentally give birth in another state while traveling, it is possible that the intended parents would not be recognized as parents of their child until further legal actions are completed. In the meantime, that means that the law of that state likely considers you as the child’s legal parent. That gives you, and potentially your spouse, if applicable, legal custody and decision-making powers. This can be an unintended and frustrating situation for everyone!
Temporary legal steps can be taken to alleviate some of the problems. For example, a lawyer might prepare a power of attorney for you to sign that gives your legal permission for the intended parents to care for their child and make medical and other decisions on the child’s behalf, until the legal determination of parentage is otherwise sorted out.
How To Avoid These Complications
Most of us love travel. But the simplest solution to avoid all the problems related to a potential out-of-state birth is simply to stay close to home and the birthing hospital. Save those fun travel plans until after delivery. It will save everyone from a lot of worry, complications, and costs. Then, when you’ve handed the baby over to those overjoyed parents, go big celebrating this incredible act!
TIP:
If you do have important upcoming travel plans in the next year –a family reunion, a wedding, or cruise, for example – one, take me! Second, share those travel plans early with the intended parents and agency so you can work together to figure out the best way to make those travel plans still happen and minimize any risk.