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The role of the surrogate's spouse in surrogacy law

  1. 🩺 Surrogate parents: a parental order and adoption order
  2. 🤰 How to become a surrogate partner
  3. ⭐ Parent order
  4. 💊 Adoption Order

However, there is one more party whose opinion must be taken into account, including as required by law: this is the spouse of the surrogate mother. We will consider the requirements for such a “surrogate father” from the reproductive legislation, his “surrogate wife”, as well as possible difficulties during the reproductive program in this material.

Surrogate parents: a parental order and adoption order

The role of the surrogate's spouse in surrogacy law 1

A basic legal requirement in most countries is the consent of the surrogate mother’s spouse to her participation in the reproductive program.

Clinics with a good reputation only accept the written, notarized consent of the surrogate mother’s husband for her participation in the program. In addition, it is understood that the surrogate mother and “surrogate father” have at least one child of their own, that is, their family looks like, for example, surrogate spouse father daughter. If the surrogate mother is not officially married, the consent of her partner is not required by law, but is highly desirable from the point of view of their interpersonal relationships. In the event of a divorce, the gestational carrier presents a divorce certificate to the reproductive clinic.

In rare cases, in some countries, the process of legalizing a newborn may be complicated by the inclusion of a surrogate wife as the child’s mother on the birth certificate. There have been precedents when a gestational carrier, without the consent of her husband, entered into a reproductive program, after which she was recognized as the mother of the child born, and her husband as the father.

Otherwise, the establishment of parental rights in surrogacy is regulated by two orders: an adoption order and a parental order.

Parent order

What is a parental order? In fact, this is an order for deprivation of parental rights, issued by the court at the request of one of the parties to the reproductive program (intended parents, surrogate parent).

In practice, obtaining a parental order looks like this: intended parents or surrogate parents, no later than 6 months after the birth of the child, submit an application to the judicial authorities to terminate the parental rights of the surrogate spouses and transfer them to the intended parents. In this case, the intended parents must live with the child, be married or in a partnership, and be located in the country where the reproductive program is being conducted. If there are no violations, the court grants the petition, and the intended parents acquire full parental rights in relation to the newborn. That's what a parental order is.

Adoption Order

In some cases, if issuing a parental order for some reason is impossible or is not enough to recognize your parental rights- the process of adopting your child begins. Essentially, this is a court hearing to confirm your parental rights. 

The adoption process depends on the marital status of the intended parents and whether donor gametes were used to create the embryo. The presence of the intended parents at the court hearing is required.

There are 3 main ways to establish a relationship with a newborn:

  • adoption: in cases where one of the intended parents is indicated on the birth certificate as the mother or father. In this case, if there is an official marriage, the second parent formalizes the adoption of the newborn. This method is relevant for same-sex couples in an official marriage or heterosexual couples who used donor eggs or sperm;
  • adoption by a second parent: this method is used mainly by couples who are not officially married, when one intended parent is already indicated on the child’s birth certificate;
  • adoption by one parent: this method is relevant for single parents who have used the surrogacy service. Single men can usually list themselves on the birth certificate, but single women who are not pregnant may have to undergo additional procedures (DNA testing).

Some legal requirements, such as research into living conditions and assessments of adoptive parents, may be waived due to the established relationship with the child.

In any case, you will need to discuss your situation with a qualified reproductive law attorney.

How to become a surrogate partner

The role of the surrogate's spouse in surrogacy law 2

From a legal point of view, the opinion of the spouse of a potential surrogate mother is important in most countries. He can either give permission to participate in the program or refuse it. However, there is an equally important layer of emotional and behavioral aspects that all relatives of the surrogate spouse, father, and daughter will have to face. Therefore, before becoming a surrogate partner, it is necessary to reach an agreement on many issues: find out all the details of the program, and what is required from the surrogate mother at each stage; organize everyday life for the period of surrogate pregnancy; determine the position and amount of information that your family can share with relatives and friends and many others.

Although in most cases the spouse of the gestational carrier is not involved in the legal part of the program, his opinion and support mean a lot in an emotional and physical sense.

During pregnancy, the surrogate mother may feel vulnerable under the influence of hormonal drugs to prepare the endometrium, worry about organizing care for your own children during the period of procedures and childbirth, have concerns about intimacy with your spouse during a surrogate pregnancy, and many other worries. Therefore, surrogate partners are recommended not only to pay attention to studying the legal aspects of the reproductive program, but also to consult a reproductive psychologist.

A very useful step would be to establish contact and exchange experiences with families who have already gone through similar experiences. This will give an understanding of possible crises and ways to resolve them.

Reproductive clinics in Ukraine, in particular, Feskov Human Reproduction Group, accept married women into the program only if they receive the notarized consent of their spouse. Ukrainian legislation does not grant parental rights to surrogate spouses, so the process of legalizing a newborn will not require any active participation from them. All that is required from them is informed consent and a willingness to provide each other with emotional support in the difficult, lengthy, but noble task of giving parental happiness to other people.

If your family is considering the possibility of a woman participating in a reproductive program as a surrogate mother, order a free consultation with Feskov Human Reproduction Group specialists on our website. We will help each family make the right decision based on its interests. Perhaps a potential surrogate mother would be much more suitable for the role of an egg donor. This step can help make even more people happy parents!


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