This area of law brings up many questions. How does the law treat a surrogate mother who carries a child to term and then decides they want to keep the resulting child? Have the intended parents unlawfully tried to buy a child? Has the surrogate committed the crime of fraud? The facts of each non-traditional parenting case are unique.
Surrogacy Law: At a Glance
Surrogacy is when a person carries an implanted embryo for the intended parents and gives birth. In other words, having a baby for a person or couple other than yourself.
Hopeful parents who can't conceive on their own might use a surrogate mother. Some people offer commercial surrogacy as a service. In these cases, the intended parents pay the surrogate for the pregnancy and birth process.
There are two main types of surrogacies:
- Traditional surrogacies
- Gestational surrogacies
These two types are explained below in more detail.
Traditional surrogacies are when the surrogate mother is artificially fertilized. Fertilization occurs using the father's sperm. The traditional surrogate mother is the biological mother. She carries the pregnancy to full term and delivers the baby for the intended parents.
The intended mother must adopt the child once the child is born. The intended father is also the biological father and is automatically granted parental rights upon the child's birth.
Gestational surrogacies involve the process of implanting the embryo into the gestational surrogate. A gestational surrogate is also called a gestational carrier.
The father's sperm and the mother's egg create the embryo in a lab. The fertilized egg is implanted into the surrogate's uterus. The surrogate carries the pregnancy to full term.
Compared to traditional surrogacies, gestational surrogacies are much more time-consuming and expensive.
Surrogacy Law Complications
Surrogacy law can be complicated and varies by state. Generally, the surrogate mother does not have any parental rights at the child's birth.
The biological father becomes the legal father. The non-biological parent must legally adopt the child. The parental rights are then with the intended parents.
This section provides relevant tools and resources for these issues. Below are links to the following:
- A surrogacy contract (surrogacy agreement) checklist
- An application questionnaire for potential surrogates
- Important considerations for surrogacy arrangements
- Information about surrogate motherhood
Artificial Conception: At a Glance
Artificial conception is any practice that involves non-traditional conception. This can include artificial insemination and in vitro fertilization (IVF):
- Artificial insemination is the process of implanting a person's uterus or ovaries with sperm. Artificial insemination is a more straightforward process than IVF.
- IVF is the process of combining sperm and an egg at a fertility clinic in a laboratory dish. Then, the embryo is transferred into a uterus. The hope is the embryo implants into the uterine lining.
Artificial Conception and the Law
Artificial conception requires several medical visits and procedures. As a result, medical and health laws affect artificial conception.
If there are medical complications, artificial conception can touch medical malpractice law, too. This can happen during the embryo transfer, sperm or egg donation, or implantation. Medical conditions and medical risks associated with the procedures may also cause issues.
Resources To Learn More
Below, find information about fertility clinics and a sample intake form. This form can help when meeting with an attorney to discuss artificial conception.
You can visit the American Society for Reproductive Medicine's website for more information on artificial conception.
This website provides helpful resources and information about:
- Fertility treatments
Family Law Related To Surrogacy and Artificial Conception
Surrogacy can add a complicating factor in family law matters. This can include child custody or visitation. Additionally, same-sex couples may have questions about artificial insemination.
If an artificial conception uses a donor's sperm or an egg donor, parentage may be questioned. This can happen if one of the parties changes their mind and the agreement is not enforceable.
Establishing parentage varies by state, so research your state's laws. For example, in New York, the Child-Parent Security Act (CPSA) allows gestational surrogacy and establishes a path for legal parentage.
Legal issues may also arise in the unfortunate event of abnormalities or complications. These can occur during the pregnancy or the child's birth. Examples include miscarriages or emergency cesarean (C-section) surgeries. Surrogacy arrangements should address the possibility of complications.
How a Lawyer Can Help: State Laws
States vary in how the law treats surrogacies. Surrogacy law is also a constantly changing area of law. As assisted reproductive technology advances, the legal issues surrounding it become more complex.
It is important to meet with an experienced lawyer. Look for attorneys with experience in surrogacy and artificial conception law.
How a Lawyer Can Help: Surrogacy Contracts
A skilled family law attorney can help you draft an enforceable surrogacy contract. They can also help negotiate the contract terms and interpret relevant state laws.
Your first step should be to contact an experienced family law attorney.
Click a link in the section below to learn more about surrogacy law-related topics.