Prospective parents have several alternatives to natural child conception and pregnancy. These alternatives include the use of a surrogate mother to carry an implanted embryo to term.
Potential surrogate mothers and prospective parents should fully understand surrogacy laws. These laws differ by state. This section contains information relevant to surrogate mothers and prospective parents. It also contains information about surrogates more generally, regardless of gender. You can also find a checklist to help you draft a legally sound surrogacy contract. It also covers reasons why the help of an attorney can make a surrogacy arrangement go more smoothly.
People choose surrogacy for many reasons. Perhaps a couple struggles with infertility. Or maybe someone who has undergone a hysterectomy wishes to have a child of their own. Regardless of the reasons, it's important to understand the complicated legal processes involved.
Continue reading to learn more about laws related to surrogacy.
What Is Surrogate Parenthood?
Surrogate parenting generally refers to assisted reproduction arrangements where a person agrees to carry a child for another person or couple. The surrogate parent is not considered to be the child's legal mother or parent.
Instead, the other person (or couple) intends to be the legal parent of the child born to the surrogate parent. Those who seek out a surrogate are often called “commissioning parents" or “intended parents."
There are two types of surrogate parenting arrangements. One is gestational or IVF, in which the surrogate does not use their own egg. The fertility clinic instead creates the embryo with an egg from the intended mother or an egg donor. This is known as “gestational surrogacy." Some call surrogates in these arrangements a “gestational mother."
In some cases, the gestational surrogate is also an intended parent. For example, a female same-sex couple might pursue surrogacy where one partner donates their egg and the other carries the child. This way, both partners get to participate in the process, although only one has a genetic relationship with the resulting child.
The second type is “traditional" surrogacy. In this arrangement, the surrogate's egg is fertilized by artificial insemination. In this case, the surrogate is the child's biological mother or parent. This arrangement can lead to legal challenges when it comes to parentage since the surrogate is also the genetic mother of the child. So, traditional surrogacy is not used as often today.
In nearly all surrogacy arrangements, the person carrying the fetus yields their parental rights to the intended parents — even if the carrier is a biological parent or genetic parent.
Whatever surrogacy process you choose, it's important to consider all the legal issues that could arise. In most cases, a surrogacy agreement addresses these issues. To learn more about these types of agreements, review FindLaw's resource on the subject.
Below are a few general requirements for a surrogacy agreement.
The parties: The agreement should name both the prospective parents and the surrogate. It should also include the date. Often, the agreement refers to prospective parents as the “intended parents." The surrogate is also often referred to as “the gestational carrier."
Type of assisted reproduction: What type of assisted reproductive technology have you chosen? These terms must be agreed upon by the prospective parents (“legal parents") and the surrogate. This part of the agreement could stipulate which fertility clinic the parties will use and the services you plan to obtain, such as:
- In vitro fertilization
- Embryo transfer
- Egg donation
- Donor sperm (including who it comes from, such as the intended father or a chosen donor)
Intended parent's involvement: Will the prospective parents be present for the birth of the child? Can they accompany the surrogate to doctor's appointments?
Parental rights: Surrogacy agreements generally require that the surrogate and their spouse (if they have one) never make a claim of legal custody of the child born by the surrogacy. Agreements like these will stipulate that the surrogate's parental rights to the child will be terminated. In some states, you can do this before the birth of the child. If your state does not allow a pre-birth order, parental rights will change after the birth of the child.
Medical expenses: Determine how the gestational carrier's health care and reproductive medicine costs will be paid. This includes expenses related to the child's birth. It could also dictate the types of medical procedures the surrogate will need to undergo.
It's important to note that state laws differ on the enforceability of surrogacy contracts. For example, in Michigan, surrogacy contracts are considered void and unenforceable. On the other hand, a New York law that took effect in 2021 allows compensated surrogacy arrangements. It also created a pre-birth court order that grants legal parental rights to the intended parents as soon as the baby is born.
An attorney in your area can help you determine how to construct your surrogacy arrangement according to state law. They can also help you understand your options if there is a ban in place.
Factors To Consider When Interviewing a Surrogate Mother
When you are looking for a surrogate, you will want to find someone who will treat the pregnancy as if it were their own.
There are many factors that determine whether a potential surrogate is the right person to carry your child. Their physical health, genetics, mental health, and support network all have a bearing on the development and well-being of your child.
Beyond that, you also have medical, legal, and financial considerations to keep in mind. Raising these questions early in the interviewing process will help you quickly narrow down surrogates who share your vision of the future and your family.
Do I Need an Attorney?
The laws on surrogacy vary from state to state, so the location of your surrogate is an important issue to consider. Also, bear in mind that surrogacy laws are constantly changing. It is important to consider consulting a family law attorney for advice.
A skilled family law attorney can help draft an enforceable surrogacy contract that addresses the important issues and the contingencies that could arise before, during, and after the pregnancy. Also, surrogacy and artificial insemination laws vary widely by state, and your attorney can help explain your state's rules.