When a woman agrees to carry a child to term for another individual, who then becomes the legal parent of the child at birth, it is called surrogate parenthood. Surrogate mothers are often used by women who are unable to conceive or carry a child to term. This typically happens through the implanting of an embryo fertilized by the male partner's sperm (this process is called "artificial insemination"). Same-sex couples also employ surrogate mothers as an alternative to becoming adoptive or foster parents.
The surrogate mother gives up her parental rights the moment the child is born. The biological father automatically becomes the legal father. The non-biological parent adopts the child. If the couple used both a sperm and egg donor, both parents will need to adopt. Not all states allow surrogate parent arrangements.
This article provides a general overview of surrogate parenthood, including applicable laws. See FindLaw's Surrogacy Law section for additional articles and resources.
Types of Surrogacy
There are two main types of surrogacy. Traditional surrogacy involves the artificial fertilization of the surrogate mother using the father's sperm. It was once the only type of surrogate parenthood arrangement available. The surrogate mother, therefore, is the biological mother of the child.
In gestational surrogacy, the surrogate mother is implanted with an embryo created from the father's sperm and his partner's (or another woman's) egg. This procedure is relatively complex, time-consuming, and expensive. The advantage of gestational surrogacy is the opportunity to have a child genetically related to both parents.
Drafting a surrogacy contract, or agreement, is crucial and can prevent serious legal problems down the road. If the surrogate mother changes her mind and wants to keep the baby, for example, the contract will compel her to give the baby to its rightful parents. Make sure you check the laws in your state before proceeding with a surrogacy agreement.
See Checklist: Surrogacy Contract to learn about the types of items you should include in your agreement. The prospective parents and the surrogate mother are advised to retain separate attorneys when entering into such an agreement.
State Surrogate Parenthood Laws
Some states expressly prohibit surrogacy, while others are either unclear about the practice, or have certain restrictions. The following examples illustrate the wide variance in the scope of surrogacy laws in the United States:
- Arizona: An Arizona statute outlaws "surrogate parent contracts," granting parental rights to the birth mother in such instances. But, while an Arizona appellate court ruled the law unconstitutional, the Arizona Supreme Court declined to review the case. As of today, parents may not use surrogacy in Arizona.
- California: A California statute allows gestational surrogacy arrangements and provides statutory requirements for the contracts. An example of a required provision includes disclosure of financial responsibility for medical expenses around the surrogacy arrangement and how such expenses will be covered.
- District of Columbia: A D.C. law allows surrogacy agreements. To have an enforceable surrogacy agreement in this state, D.C. mandates certain provisions in the contract. Examples of such provisions include assuming responsibility for the child immediately after birth, allocating financial responsibilities, and providing procedures for dispute resolutions.
- Florida: Both gestational and traditional surrogacy agreements are explicitly allowed by statute for those 18 and older. But, the Florida surrogacy law explicitly limits surrogate parenting agreements to married couples only.
More Questions About Surrogate Parenthood? Ask an Attorney
As you can imagine, surrogate parenthood has been an area of disputed rights for many years. Many couples choose to hash out their rights beforehand through a contract.
If you're considering being a surrogate or if you're wanting a surrogate to carry your child to birth, your first step should be to speak with an experienced family law attorney. Attorneys will help provide you with helpful legal advice to guide your surrogacy journey.