Country star Jelly Roll and Bunnie Xo recently brought an unusual family law question into the spotlight: What happens when a couple pursuing surrogacy decides to divorce?

Before their split, Jelly Roll and Bunnie Xo had been open about their fertility journey. The couple had pursued IVF, found a surrogate, and publicly discussed their hopes of welcoming twins together. Then, in May 2026, Jelly Roll filed for divorce after nearly 10 years of marriage.

But their plans to have a child together apparently didn't end with their marriage.

After news of the divorce became public, Bunnie Xo revealed that she and Jelly Roll still intended to continue their fertility journey and have a child together, with plans to co-parent despite no longer being a couple.

Their situation highlights the question: What happens to embryos when a couple separates? Who becomes the legal parent of a child carried by a surrogate? And what happens if the intended parents divorce before the child is even conceived or born?

Divorce is stressful under any circumstances. When a pregnancy or planned birth involves a surrogate, the legal and practical questions can multiply. Understanding legal parentage, surrogacy agreements, embryo disposition, custody, and child support can help intended parents understand what may happen when a relationship ends in the middle of the surrogacy process.

Key concepts and terminology

Surrogacy generally falls into two categories – traditional surrogacy and gestational surrogacy. Traditional surrogacy involves a surrogate who is genetically related to the child because her own egg is used. Gestational surrogacy involves a surrogate who is not genetically related to the child because an embryo created from the intended parents' gametes or donor gametes is transferred to her uterus.

The individuals seeking to become the child's legal parents are typically referred to as the intended parents.

Legal parentage is the legal recognition of a person as a child's parent, with all the financial, parental, and legal rights and responsibilities that any parent has, such as decision-making, custody, and support. Legal parentage can be established before or after birth, depending on the jurisdiction and the facts, and it is distinct from genetic connection and from who gives birth. However, marital status is not always neutral. Depending on the state, some states' surrogacy statutes tie an enforceable gestational agreement to the intended parents' marital status, and a divorce mid-process can affect whether the agreement is still valid under that state’s law. This is state-specific, so intended parents who divorce mid-surrogacy should confirm how their state treats divorce and surrogacy.

The Jelly Roll and Bunnie Xo situation illustrates why those distinctions can become particularly important. When spouses pursue IVF or surrogacy together but later separate, questions about genetic material, consent, intended parentage, and future parental rights may continue long after the romantic relationship ends.

How parentage is typically established and why timing matters

Courts often establish parentage in surrogacy matters through pre-birth orders or post-birth judgments.

A pre-birth order is a court order, typically obtained late in pregnancy, that directs the hospital and state vital records office to recognize the intended parent or parents as the child's legal parents at delivery. In some places, courts will instead issue a post-birth parentage judgment shortly after the child is born. In other settings, particularly where one intended parent lacks a genetic tie, a post-birth adoption or confirmatory adoption may be used to establish parentage.

Timing can become especially important when the intended parents separate.

If a pre-birth order is already in place when spouses separate, both intended parents may already have a clear path toward recognition as legal parents upon birth, depending on applicable law. If no order exists and the spouses separate before delivery, one or both may need to pursue a post-birth parentage judgment or adoption.

And, an even more unusual situation can arise when former spouses decide to proceed with creating a child after the divorce itself, as Jelly Roll and Bunnie Xo have publicly indicated they intend to do.

In that scenario, the parties cannot necessarily rely on their former marital status to answer questions about parentage. Their written IVF consents, surrogacy agreement, genetic relationships, applicable parentage statutes, and future court orders can become especially significant.

Custody, parenting time, and child support

Once legal parentage is established, a child born through surrogacy generally isn't placed into an entirely separate custody system simply because a surrogate carried the pregnancy.

Courts generally apply the same best-interests-of-the-child framework used in other custody cases. The focus is on the child's welfare, stability, and continuity of care, not simply on how the child was conceived or who carried the pregnancy.

Factors may include each parent's caregiving history, the child's needs, the ability of the parents to co-parent, and any safety concerns.

Child support is similarly generally determined under applicable state law once legal parentage is established. The fact that a child was born through surrogacy does not, by itself, eliminate a legal parent's obligation to support the child.

This is one reason an agreement between two former spouses that they will simply "co-parent" a future child may not be the end of the legal analysis. Parents generally cannot privately contract away a child's rights or bind a court to a future custody arrangement if the court later determines something else is in the child's best interests.

How should co-parenting be handled?

If intended parents separate during a surrogacy journey, they should address co-parenting in a written agreement as early as possible, ideally with separate family-law counsel for each of them. The agreement should cover decision-making for the child, parenting time, communication, financial support and expenses, travel, healthcare, and how future disputes will be handled. It should also be coordinated with the surrogacy agreement, clinic consents, and any parentage proceeding. A private agreement can provide a roadmap, but it cannot override a court’s authority to decide custody and parenting arrangements based on the child’s best interests.

When former spouses decide to have a child together after a divorce, a co-parenting agreement is worth doing, as long as everyone understands what it can and cannot do. What it can do is capture intent. It can document that both people intended to become legal parents of the child, that both consented to the transfer, and that neither is a donor. It can set out how they expect to handle decision-making, schedules, finances, insurance, travel, and what happens if one of them moves. That record is valuable, because parentage disputes often turn on what the parties intended at the time of conception, and memories change once a dispute begins. What it cannot do is bind a court. Custody and child support belong to the child, not the parents, and a court reviewing custody applies the best-interests standard regardless of what the parents agreed to privately. A clause waiving child support, or locking in a permanent custody split, is the most likely part of the agreement to be disregarded.

A few practical points. The agreement should be signed before the embryo transfer, not after the pregnancy is underway. It should be consistent with the surrogacy agreement and the clinic's IVF consent forms, because inconsistencies between the three documents are what create litigation. Each person should have their own attorney. The agreement is not a substitute for a parentage order. It is evidence of intent of the coparenting relationship between the intended parents, not a court determination of who the parents are, and the pre-birth or post-birth order still has to be obtained.

What happens to the surrogacy agreement in a divorce?

Surrogacy agreements typically address matters such as the parties' respective roles, expenses, medical issues, communication, and plans for establishing parentage.

If the intended parents divorce, the agreement can become an important piece of evidence showing what everyone intended when the surrogacy process began. Most surrogacy agreements are signed by both intended parents jointly. Divorce does not cancel the agreement, and it does not release either intended parent from financial obligations to the surrogate. Both intended parents remain responsible for compensation, medical costs, and insurance regardless of what the divorce decree says between them.

But there are limits.

Courts generally will not enforce provisions that conflict with applicable law, public policy, or a child's best interests. Provisions attempting to predetermine custody or waive future child support may be particularly vulnerable.

Independent legal counsel for the intended parents and surrogate, along with compliance with state-specific surrogacy requirements, can strengthen an agreement's enforceability but an agreement cannot necessarily override statutory protections involving children.

What happens to embryos when intended parents divorce?

This can be one of the most complicated parts of the equation.

If embryos remain in storage when a couple separates, the question isn't simply "Who gets the embryos?"

Fertility clinics typically require patients to sign consent documents addressing what should happen to embryos under various circumstances, potentially including divorce or separation. Couples may also have separate agreements concerning the disposition of embryos. Clinic consent forms and the divorce decree are separate documents, and they often conflict. If the decree is silent on embryos, the clinic will typically follow its own consent form. However, if the documents conflict, unless the couple can agree on what to do with the embryos, they will have to go to court to have it resolved. This is why having an attorney draft a document, over and above the clinic consent form, is vital, as it is much more in-depth than a clinic consent form and can be used to show the parties’ intentions surrounding the embryos at the time the embryos were created.

Depending on the jurisdiction, courts may consider those prior agreements, the parties' present wishes, constitutional or public-policy concerns surrounding procreation, and applicable statutes.

That means a divorce can potentially halt plans for additional embryo transfers until the parties' rights are resolved.

The Jelly Roll and Bunnie Xo situation presents the opposite possibility: What if both people still want to proceed?

Their reported plans demonstrate why reproductive-law counsel can remain important even in an amicable divorce. Ending a marriage doesn't necessarily end the parties' existing IVF arrangements, ownership interests in genetic material, or plans for future parenthood.

One spouse withdrawing consent

Another complication arises when one intended parent changes their mind.

If a spouse revokes consent before embryo transfer or birth, courts may examine IVF consent forms, the surrogacy agreement, and state law to determine whether the process can continue.

The timing of that withdrawal can matter enormously. Withdrawal after transfer is a different question from withdrawal before it. Once a surrogate is pregnant, a change of heart does not undo the pregnancy, and the intended parents’ and surrogate's contractual protections stay in place.

Once a child has been born and legal parentage has been established, simply changing one's mind about having wanted the child does not erase the legal rights and responsibilities associated with parenthood.

The takeaway

Jelly Roll and Bunnie Xo's situation highlights something that would have sounded unusual not long ago: Divorce doesn't necessarily mean the end of a couple's plans to become parents together.

Assisted reproductive technology has created family structures that don't always fit neatly into traditional divorce rules. A couple can end their marriage while embryos remain frozen, separate while a surrogate is pregnant, or potentially decide—as Jelly Roll and Bunnie Xo have publicly indicated—to pursue parenthood together even after their romantic relationship ends.

The important legal question then becomes less about whether the parents are married and more about consent, legal parentage, the parties' reproductive agreements, and ultimately the rights and best interests of the child.

For intended parents going through a divorce, getting legal advice early can be particularly important. Decisions involving embryos and surrogacy can have consequences that last much longer than the divorce itself.