Rachael Lang said she had planned on having kids "right away" after she got married.
But those plans were put on hold when she was diagnosed with breast cancer nine months after her wedding day. It was 2018, and she was 26.
After going through treatment, freezing her eggs and finding a close friend to be her surrogate, Lang became a mother in 2023 − in spirit and in practice, at least. Legally, it took two years and "a lot of frustration" for Lang and her husband to officially adopt their biological daughter, Delaney.
"I remember being in the parking lot at work and getting a phone call from our attorney, and (them) saying something's been delayed again because of something else, and just crying because we just wanted to be done," Lang, now 34,
told USA TODAY.
After Delaney was born, it took two weeks for Lang and her husband to get guardianship. In the meantime, Lang said Delaney's birth certificate was mailed to their surrogate, naming the surrogate and her husband as Delaney's parents.
"We couldn't make medical decisions when she was born," Lang said, adding that they also couldn't add Delaney to their insurance policy until they had guardianship. "We were talking to our attorney on the day that she was born, when really, we should have been able to spend time with our newborn."
There are various reasons that lead some hopeful parents to surrogacy and other fertility treatments, all with the same dream of expanding their family. But some outdated parentage rights laws that vary by state can pose real challenges for those families after their children are born. Advocates including Patience Crozier, director of family advocacy at GLBTQ Legal Advocates & Defenders, are on a mission to update states' parentage policies so that parents and kids are protected everywhere, "no matter how they come into our family."
"There are so many children living in our communities who are born through fertility health care, whether it's IVF, donor conception or surrogacy," Crozier said. "They have to be protected to their parents."
What happened in Texas and why parental rights matter
A recent, unique parentage rights case out of Texas has brought this issue into the national spotlight. Surrogate McKenna West alleges the biological parents she carried for asked her to get an abortion upon learning that the baby was diagnosed, before birth, with hypoplastic left heart syndrome, a serious congenital heart defect. West, who lives in Alaska, refused to terminate the pregnancy and traveled to Texas, a state with more restrictive abortion laws, before giving birth there in August.
The baby boy's intended parents have had custody since his birth, according to the Texas Tribune. But West is fighting for parental rights to make medical decisions for the child.
The case is "a tremendous tragedy" that's been highly politicized, Crozier said. It's also, among surrogacy situations, an outlier.
"Many children are born into families in this country through surrogacy all the time," Crozier said. "And most of the time, those agreements go really smoothly."
The ease in which parents and surrogates can agree on and carry out a successful contract for surrogacy depends on their state's parentage laws. The Uniform Parentage Act, most recently updated in 2017, is a good blueprint, Crozier said. But not all states have adopted that version or crafted similar policies that account for and protect children born via surrogacy, children in LGBTQ+ families, children who are adopted, children conceived through IVF and other ways children are connected to their parents.
The West case in Texas is "showcasing some weaknesses" in the surrogacy system, and building a case for more regulation around parentage rights, said Mariam Shahab, fractional chief marketing officer for The Surrogacy Foundation. Shahab had her son through surrogacy.
"We should be making it safer for people to build their families," she said.
Slowly, state legislators across political lines have taken to these updates, Crozier said, because they see why children and families need protection − and "what happens when they don't get it."
"The structures of our country put so much on that legal parent-child relationship," Crozier said. Without legal parentage, parents can't get health insurance for their child; they might not qualify for parental leave; they can't enroll their child in school; they can't make medical decisions for their child; and "the list goes on and on and on," Crozier said.
Language matters to these families, Shahab said − emotionally and legally.
The term "surrogate mother," while antiquated, is sometimes still used in contracts, she said. But that can cause discomfort for gestational carriers and intended parents alike.
"It's super important to know that the birthing individual is not the mother, just so that the parentage rights are in place," Shahab said. "That word (surrogate mother) is kind of a hot button of feelings and then, like, logistics."
'I felt so discriminated against for something that I had no control over.'
Lang lives in Michigan. The state only recently decriminalized surrogacy and made it easier for families to get formal recognition of their parental rights with the Michigan Family Protection Act in 2024. Before then, when Delaney was born, intended parents in Michigan were unable to create enforceable, legally-binding contracts with their surrogates and were required to adopt their children after birth.
During the two years they fought to get those rights, Lang said she constantly worried about what might happen if anyone questioned their ability to make medical decisions for Delaney. She couldn't take her daughter out of state. They spent thousands of dollars on attorneys and court fees "that could have gone into Delaney's college accounts," she said. And Child Protective Services made regular home visits.
"That just carried some extra anxiety. We knew that we provided a good house to our biological daughter, but we still had someone coming in to check up on us," she said. "It took a lot of time away from us being able to focus on Delaney."
Stephanie Jones, founder and president of the Michigan Fertility Alliance, understands the convoluted process some parents are forced into. She carried and delivered her first child without issue, but experienced life-threatening complications with her later pregnancies that led her family to seek surrogacy. She knew nothing about it at first, but then found that families in Michigan had no parental rights protections with surrogacy.
"I felt so discriminated against for something that I had no control over," Jones said.
To ensure better protections for her family, Jones used a fertility clinic in Oregon and her daughter was born via surrogacy in Kentucky. "That's the lengths that we went to," she said. Her experience sparked her passion to help update Michigan's parentage rights law. Now, her organization is working to expand access to fertility health care across the state, and Jones also advises family policy advocates in other states.
"Parentage rights across the country is very much a patchwork and something that we are actively trying to evolve," she said. "Our parentage laws have not kept pace with the ways that families start or grow today."
'A lot more work upfront'
Lang's family is expecting their second child in the winter.
"The process is different. It's a lot more work upfront," Lang said.
A different friend is carrying their second child, and this time around, Lang said their contract is much more in-depth and offers better protections for both Lang's family and for their surrogate and her family. Lang's family is required to buy life insurance for their surrogate and can reimburse her for things they couldn't for their friend who carried Delaney.
This time, Lang and her husband have obtained a pre-birth order so they won't have to adopt their child after birth. These policy changes are important, Lang said, because when laws don't clearly recognize a child's parent, "it's the child who ultimately suffers."
"They deserve the security from the beginning," she said, adding that she and other parents who grow their families via surrogacy "just want, legally, for everyone to understand who the child is, who they belong to and for the child to understand where they belong."
Madeline Mitchell's role covering women and the caregiving economy at USA TODAY is supported by a partnership with Pivotal and Journalism Funding Partners. Funders do not provide editorial input.
Reach Madeline at memitchell@usatoday.com and @maddiemitch_ on X.
This article originally appeared on USA TODAY: Her daughter was born via surrogacy. For 2 years, the state didn’t recognize her as a mom
