One of the most important aspects of a surrogacy match is the legal contract. It’s equally crucial for both parties – intended parents want the security of established parental rights, and a surrogate's rights and protections as a gestational carrier must be addressed too. We’ll explore some common concerns around the legal process – and how the rights of a surrogate factor in so that everyone involved is protected and treated with respect.
Traditional vs. gestational surrogacy
First, it’s important to address the different types of surrogacy. While it’s rarely practiced these days – and in many states, it’s illegal – traditional surrogacy still exists. This means that the surrogate’s own egg is used, making her the child’s genetic mother. It invites a whole host of potential legal and emotional complications, which is why few intended parents choose this route. In the more common gestational surrogacy arrangement, the surrogate undergoes IVF and carries a child that is genetically related to the intended mother or an egg donor. With a proper legal contract in place to protect all parties, gestational surrogacy arrangements are the safest route.
Do surrogates have rights?
Absolutely. Surrogacy is a selfless act, but the surrogate mother is entitled to rights and protections as well. Some of these include the right to:
- Have health insurance
- Be informed about any medical procedure and the potential side effects
- Choose her medical team if side effects develop
- Have psychological help at any point during the pregnancy
- Receive the compensation and/or reimbursements agreed to in the legal agreement
A surrogate should be well educated on the physical and medical implications of surrogacy to make the best decision for her. Medical consent is a major provision within a surrogacy contract; it means that both the intended parents and surrogate must agree to testing for medical conditions and communicable diseases. Before the match is confirmed, it’s also important to discuss termination to ensure you share the same feelings and beliefs. A woman’s right to choose legally extends to surrogates, but if termination breaches the contract she would not be entitled to compensation and may face other legal implications.
Can a surrogate mother decide to keep the baby?
No. While a surrogate has rights, the right to keep the child is not one of them. Once legal parenthood is established, the surrogate has no legal rights to the child and she cannot claim to be the legal mother. In the same vein, the contract protects the surrogate from any kind of legal or medical responsibility for the child. It’s important to remember that your surrogate’s motivation is not to keep the baby. ConceiveAbilities’ comprehensive screening, which includes a full mental health evaluation, clinical interview, and records review, helps ensure this. Her goal is the same as yours – to help you build your family.
Surrogacy laws by state
Surrogacy laws vary by state, and they can change quickly. First and foremost, the surrogate must reside in a state where commercial surrogacy isn’t prohibited; if it is against a state’s law, the court can determine the contract void and participants may even face criminal charges. Working with a reputable agency like ConceiveAbilities and an attorney who is well versed in surrogacy law is the only way to mitigate these risks; having surrogacy contracts explained protects both the intended parents’ and the surrogate’s rights.
A pre-birth order is a parentage document that establishes the intended parent(s) as the legal parents of the baby. It expedites the post-birth legal process so that the baby can leave the hospital with the parents, and the parents' names appear on the birth certificate. According to Meg Ledebuhr, Esq., Director of Legal Services at ConceiveAbilities, “A pre-birth order is the gold standard in fertility law.” Ideally, it’s finalized during the second or early third trimester. “The earlier you can establish parentage by way of pre-birth order, the better.”
Depending on the state and source of the eggs and sperm, additional steps may need to be taken after the birth. For example, a stepparent adoption may be required if an egg or sperm donor was used. In some states, an unmarried couple may need to complete a second-parent adoption. And in some states, a post-birth order must be completed instead.
Ultimately, recognizing a surrogate’s rights are imperative to a smooth surrogacy journey. Contact us to learn more about becoming a surrogate with ConceiveAbilities or to start your family. We’re here to inform and support you every step of the way.