What Is Surrogate Parenthood?
Under certain circumstances, a person agrees to carry a child to term for another individual, who will then become the legal parent of the child at birth. This is called "surrogate parenthood."
Surrogate mothers are often hired by people who are unable to conceive or carry a child to term. This typically happens through the implanting of an embryo fertilized by the partner's sperm. This process is called "artificial insemination." Same-sex couples also employ surrogates 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 would need to adopt. Not all states allow surrogate parent arrangements. Surrogacies are an important and frequently used process in assisted reproductive technology.
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 and gestational. Traditional surrogacy involves the artificial fertilization of a surrogate's egg using the intended 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.
Traditional surrogacy is typically done by artificial insemination or in vitro fertilization (IVF). IVF treatments typically take place at fertility clinics with the assistance of a surrogacy agency.
Traditional surrogacies are not that common anymore because they've often resulted in difficult legal situations. For example, the surrogate could change their mind about relinquishing custody of the child after the birth.
In gestational surrogacy, the surrogate mother is implanted with an embryo created from sperm and eggs from the intended parents or donors. 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.
This process uses a gestational carrier who carries the fetus to full term. The gestational surrogate carries the child to term and agrees to certain terms of doing so. The transfer is called an embryo transfer. This type of process could also involve egg donation. Donor eggs can be obtained from many sources, including fertility clinics. They may be obtained from a family member, as well.
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. This is an important part of any gestational surrogacy and surrogacy process. It can prevent the likelihood of any possible legal issues arising during the post-birth phase of such a surrogacy.
An intended mother, intended father, or intended parent should work with an attorney. Attorneys can help make sure their surrogacy agreement is well-drafted. A well-drafted surrogacy agreement covers all possible necessary terms of the surrogacy.
See FindLaw's 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.
The surrogacy agreement can prevent disputes over parentage and bind parties to certain terms, such as:
- Where and when medical procedures are performed
- Cost of surrogacy
- Physical and psychological exams for the surrogate
- Required prenatal care
Additionally, the intended parents need to be explicitly indicated in the agreement. This will help prevent legal disputes over the resulting child.
State Surrogate Parenthood Laws
Some states expressly prohibit surrogacy contracts. 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." These contracts are not enforceable. But surrogacy can still take place. Intended parents can pursue and obtain a court order that declares them the legal parents. With gestational carriers, the intended parents can engage in a process to rebut the presumption of parentage. In doing so, the intended parents can get a pre-birth parentage order.
- California: A California statute allows gestational surrogacy arrangements. It provides statutory requirements for the contracts. An example of a required provision includes disclosure of financial responsibility. This financial responsibility pertains to medical expenses. These medical expenses include 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, D.C. mandates certain provisions in the contract. Examples of such provisions include assuming responsibility for the child immediately after birth. They also include allocating financial responsibilities and providing procedures for dispute resolutions.
- Florida: Both gestational and traditional surrogacy agreements are explicitly allowed by statute. Such permission occurs for those 18 and older. But Florida surrogacy law explicitly limits surrogate parenting agreements to married couples.
The American Society for Reproductive Medicine is the leading society in this area of medicine. You can learn more about reproductive medicine through this association. The resources they provide include resources on the medical risks that can occur during surrogacies.
More Questions About Surrogate Parenthood? Ask an Attorney
People may choose to use surrogacy for many reasons. A person might struggle with infertility, and fertility treatments have failed. Someone may choose to use a sperm donor because their partner cannot provide sperm, or they do not have a partner. Or perhaps they've had a hysterectomy. Maybe genetic testing revealed a risk of passing a medical condition on to your child.
If you're considering being a surrogate, your first step should be to speak with an experienced family law attorney. If you're wanting a surrogate to carry your child to birth, it's also a good idea to speak with an attorney. Attorneys will provide you with helpful legal advice to guide your surrogacy journey.
Can I Solve This on My Own or Do I Need an Attorney?
- State laws vary in their treatment of surrogacies
- Surrogacy law is constantly changing and can be complex
- An attorney can draft an enforceable surrogacy contract and negotiate contract terms
Get tailored advice and ask a lawyer questions about your state laws. Many attorneys offer free consultations.