Surrogate Laws

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 What Is a "Surrogate?"

A surrogate is a female who carries a child or children on behalf of other parents. Typically, there are two types of surrogate situations, in vitro fertilization or artificial insemination.

There may be numerous legal and ethical concerns that are related to surrogate arrangements. An example of a successful surrogacy arrangement is discussed below.

Jane and Joe are a married couple who live in Illinois. They have been trying to start a family for many years but Jane has a medical condition that prevents her from carrying a pregnancy to term.

After trying all other options, they look into surrogacy. They decide to try gestational surrogacy, where an embryo that is created from Jane’s egg and Joe’s sperm are implanted into a surrogate mother.

They use a reputable surrogacy agency and meet Sally, a woman who has had healthy children and is in good health herself. She wants to help couples who cannot conceive so they can experience the joy of parenthood.

The parties enter into a surrogacy contract that clearly outlines the expectations, responsibilities, and rights of each party. It covers every detail, from medical and psychological evaluations to Sally’s compensation and healthcare, to the legal process for ensuring Jane and Joe are recognized as the legal parents of the child immediately upon its birth.

The procedure is successful and Sally carries a healthy baby boy to term. Once he is born, Sally immediately gives him to Jane and Joe and they begin their journey as parents.

What Is In Vitro Fertilization?

In vitro fertilization (IVF) is a medical procedure where an egg is fertilized by sperm outside of an individual’s body in a laboratory. That fertilized egg, which is now an embryo, is then implanted in the surrogate’s uterus with the intention of establishing a successful pregnancy.

Typical Surrogate Agreements

The typical surrogate agreement, or surrogacy contract, that is used in a surrogacy situation will cover a variety of topics, including, but not limited to:

  • Parents’ right to attend surrogate’s medical exams as well as review the medical records of the surrogate;
  • Testing of all parties involved for any sexually transmitted diseases;
  • Evaluation of the surrogate mother’s genetic history;
  • Signing an anti-disclosure statement in order to prevent the surrogacy from being made public;
  • Psychological counseling for all parties involved;
  • A determination of parental rights;
  • Whether any compensation is to be made; and
  • Termination of the agreement.

Compensation of Surrogates

There have been great debates regarding whether or not surrogates should be compensated for their childbearing services. There are many states that try to avoid baby selling.

This means that many forms of surrogacy are classified as a felony and are punishable by imprisonment and significant criminal fines. If an individual is contemplating a surrogacy arrangement, it is important that they first consult with an attorney.

Does a Surrogate Mother Have Rights to the Baby?

No, a surrogate mother does not have rights to the baby. The surrogate agreement should protect the surrogate mother from any type of legal or medical responsibility for the child.

This applies even though there may be concerns that the surrogate may become attached to the child.

Are Contracts Necessary for Surrogacy Agreements?

If an individual is entering into a surrogacy agreement, then a formal surrogacy contract will be essential to the preservation of their rights as a parent. There are some states that require a written contract be in place for a surrogacy arrangement to be legal.

Although a contract may serve as strong evidence of an agreement, there is not a guarantee that the contract will be upheld in a court of law. In addition, a court will modify the contract if it is not considered to be in the best interests of a child.

Are Surrogacy Contracts Legal?

Surrogacy contracts are legally binding agreements between the surrogate mother and the intended parents. The surrogate agrees to carry the pregnancy for the intended parents.

The intended parents then become the legal parents of the child or children who are born of the surrogacy. A surrogacy contract usually covers things such as:

  • Compensation;
  • Medical procedures;
  • Legal rights;
  • Potential risks and contingencies;
  • Responsibilities of all of the parties involved; and
  • The establishment of parental rights following the birth.

In certain states, such as California, both altruistic and commercial surrogacy contracts are legal and enforceable. However, there are other states that have more restrictive laws or even outright bans.

An individual should consult with an attorney in their area to gain an understanding of the current laws that govern surrogacy legal agreements where they reside.

Are Surrogacy Contracts Valid Everywhere?

The legality and enforceability of a surrogacy contract varies widely across the states in the United States. The following are examples of how certain states treat surrogacy contracts:

  • California: In California, both traditional and gestational surrogacy contracts are legal and fully enforceable;
    • Pre-birth orders, which establish the intended parents as the legal parents before the child’s birth, are granted, meaning that the intended parents’ names can go directly onto the original birth certificate;
  • New York: in New York, compensated gestational surrogacy is now legal, after being illegal before 2021;
    • The Child-Parent Security Act provides a legal process for establishing parental rights in surrogacy arrangements;
  • Nebraska: Nebraska’s surrogacy laws are restrictive and specifically declare surrogacy contracts to be void and unenforceable;
    • Because of this, intended parents might face challenges in this state;
  • Michigan: In Michigan, compensated surrogacy contracts are prohibited under the law. A violation may result in criminal penalties;
    • Uncompensated surrogacy contracts may be recognized, but the legal landscape here is uncertain and can pose challenges for intended parents; and
  • Texas: In Texas, gestational surrogacy is explicitly permitted by statute. In addition, intended parents may obtain a pre-birth order to establish their parental rights;
    • However, traditional, or genetic, surrogacy is not recognized, and such contracts may be deemed unenforceable.

If a surrogacy contract is breached, certain types of family law issues may arise such as custody disputes. In addition, there may be criminal charges or financial penalties.

For example, in one California case, a surrogate mother expressed an attachment to the child she was carrying and a desire to keep the child, in breach of the surrogacy contract she entered into. The couple’s lawyer filed an action in court to enforce the surrogacy contract.

The state of California supports surrogacy agreements, so it rules in favor of the parents based on the contract. The court also rules that, because the surrogate mother violated the contract, she was not entitled to the final amount that she would have received after the birth of the child.

In addition, she had to repay a part of the living allowance she received during her pregnancy.

Do I Need an Attorney Experienced with Surrogate Relationships?

If you are considering a surrogacy arrangement, whether as the surrogate mother or as the potential parents, it is essential to consult with a surrogacy lawyer. This is especially important because there are differences in the laws across the states and you need to ensure that your surrogacy arrangement is legal and enforceable.

Your lawyer can advise you of your obligations and rights as well as protect your interests throughout the process. Your attorney will also ensure that you understand the legal implications, risks, and responsibilities involved in surrogacy.

Your attorney can help you draft a surrogacy contract that protects your rights and interests and covers all of the necessary topics. In order to avoid any issues or surprises during the surrogacy process, it is essential to have help from an attorney.

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