By Emilee Gehling & Isabella Erickson
A new law has made it easier for Nebraska intended mothers to establish their maternity at birth.
In Nebraska, surrogacy agreements that compensate surrogates are unenforceable. Because Nebraska courts will not enforce these surrogacy agreements, there are no pre-birth orders that establish parentage before the child is born. Traditionally, in Nebraska, the process to establish legal parentage for parents through surrogacy was established differently for fathers and mothers. In a non-surrogacy pregnancy, women establish their legal maternity by giving birth to the child. Men, however, can establish presumed paternity a few ways, including by being married to the birth mother, but a father may also sign an acknowledgement of paternity at the hospital. He may then be listed on the birth certificate as the father.
Previously, the only way the intended mother of a baby born through gestational surrogacy in Nebraska could establish her rights as a parent was by going through the lengthy process of adopting the child after birth. Thanks to the Vital Statistics Act, passed in 2020, intended mothers in Nebraska may now establish their maternity at the hospital without going through the adoption process.
The law makes a legal distinction between “birth mothers” and “biological mothers.” In gestational surrogacy, a fertilized egg is implanted in the gestational surrogate. The intended mother provides the egg, making her the biological mother of the child. The gestational surrogate carries and gives birth to the child, making her the birth mother. Under the new law, the birth mother and the biological mother may sign a notarized acknowledgement of maternity. This acknowledgement asserts that the biological mother is the mother of the child. After this acknowledgement is accepted by the Nebraska Department of Health, the biological mother is listed on the birth certificate.
While this law does not change the fact that Nebraska does not enforce compensated surrogacy agreements, it does streamline the process of recognizing the intended parents of a child born by surrogacy. This removes a barrier only intended mothers faced, and one that intended fathers did not have to navigate. Now the law provides a formal recognition of the intentions of the parents and the gestational carrier.
If you are considering gestational surrogacy in Nebraska, contact Gehling Osborn law firm for help navigating the process.