When a couple cannot conceive a child through conventional means, surrogacy is a viable option. This process involves a third party female carrying and giving birth to the child for the couple. There are two primary types of surrogacy: traditional and gestational. With gestational surrogacy, the egg and the sperm are obtained from the intended mother and father. In vitro fertilization (IVF) is used to facilitate the pregnancy.
Gestational surrogacy can help many couples realize their dream of having a family, but many couples also face potential legal hurdles along the way.
Determining the “True” Parent of the Child
Surrogacy cases are often complex simply because it can be a challenge to determine the true parent of the child. Gestational surrogacy eases these concerns slightly because the sperm and the egg are donated from the intended parents. For all intents and purposes, the surrogate is merely serving as the vessel for the pregnancy.
However, there have been couples who have had to deal with surrogate mothers changing their minds and wanting to keep the child as their own.
When considering surrogacy, it’s important to take into account any state-related issues that might complicate the process.
Some questions to consider include:
- Is surrogacy allowed in your state?
- Are surrogacy contracts recognized in your state?
- Is it difficult to transfer parental rights of a child from a surrogate to the intended parents?
- Can you legally advertise for a surrogate?
If the physician discovers potential birth defects or other health issues, the intended parents may wish to terminate the pregnancy, and the surrogate mother may wish to continue it. This can lead to legal issues, particularly if the intended parents obtained a donor sperm or the surrogate is the biological mother. Who gets to decide whether the pregnancy should continue?
Drawing Up a Surrogacy Contract
Before moving forward with the pregnancy, it is advisable that you have all possible legal issues reviewed by an experienced attorney. Creating a surrogacy contract can help address and resolve these issues. It is recommended that you create this contract before you secure a surrogate, and have it signed early on in the process.
While each individual contract will vary, there are some important items that should be addressed, such as:
- Naming all of the parties involved in the agreement (generally the couple and the surrogate)
- How and where the implantation will be performed
- The testing procedures that will be used
- Whether the surrogate will be allowed to be in the child’s life after the child is born
- Who will maintain guardianship of the child if the intended parents should pass away before the child becomes a legal adult
- What legal recourse will be available to the intended parents if the surrogate is given custody of the child after birth
- Establishing which fees and expenses the surrogate and intended parents will be responsible for
Under the surrogacy contract, the surrogate will also agree to abandon her parental rights to the child and will allow the intended mother to adopt the child.
The Micklin Law Group, LLC is a New Jersey law firm specializing in family law and estates. Attorney Brad Micklin was recently named to The National Advocates list of Top 100 attorneys from each state. To set up a consultation, call 973-562-0100.