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What is Surrogate Parenthood?

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 male couples also sometimes employ surrogate mothers, often by fertilizing one of her eggs, as an alternative to becoming an adoptive or foster parent.

The surrogate mother relinquishes her parental rights the moment the child is born. The biological father automatically becomes the legal father, while the non-biological parent adopts the child. 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 and once was 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.

Surrogacy Agreements

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 relinquish 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 scope of surrogacy laws in the United States:

  • Arizona: 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, which means the scope and legality of the state's law remains unclear.
  • California: While California has no surrogacy statute, the state's courts have consistently upheld valid surrogacy agreements by citing the Uniform Parentage Act (see In Re: Marriage of John A. and Luanne H. Buzzanca for an example). California also recognizes surrogacy agreements involving lesbian, gay, bisexual and transgender (LGBT) individuals.
  • District of Columbia: D.C. law prohibits all surrogacy agreements, rendering them unenforceable and punishable by a fine or jail time. However, the act of surrogacy is legal in the District of Columbia.
  • Florida: Both gestational and traditional surrogacy agreements are explicitly allowed by statute for those 18 and older, but the law specifically excludes LGBT individuals. While a 2010 appellate ruling overturned the general ban on adoption by LGBT prospective parents, 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. This is one reason why many individuals entering into a surrogacy arrangement choose to hash out their rights beforehand with a contractual agreement. 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 to go over your questions and help you prepare a surrogacy agreement.

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