Defining Surrogate Parenthood

Surrogate parenthood is defined as when a woman has agreed to carry a child for full-term for a different individual who will then become the legal parent of the child at birth. Often times, women who seek out the assistance of a surrogate parent are those who are unable to successfully carry a child on their own due to some sort of limitation with their reproduction ability. Surrogate parenthood occurs when an embryo is implanted after achieving fertilization by the male partner through artificial insemination. The mother and father who is having a surrogate mother carry their child are both the physical parents through the artificial insemination process.

Surrogate parenthood can also be used for same-sex couples as they traditionally would not be able to conceive a child on their own. For same-sex male couples, one of the men in the relationship with utilize artificial insemination for one of the eggs of the woman who has chosen to be their surrogate mother. This process allows the same-sex male couple to share DNA with their child and stands as an alternative solution rather than becoming an adoptive or foster parent. In this situation, the surrogate mother agrees to relinquish her parental rights as soon as the child is born. The biological father who did the artificial insemination process is automatically the legal father whereas the other father, who is technically a non-biological parent, adopts the child at birth. If you are unsure of your legal rights as a surrogate mother, go to your family lawyer for all of your questions. 

Surrogacy Types

Within the realm of surrogacy, there are two common types. The first main type of surrogacy is called traditional surrogacy. Within traditional surrogacy, the surrogate mother is fertilized artificially with the father’s sperm and stands as the only type of surrogate parenthood arrangements available. Within this type, the mother is not only the surrogate mother but also the biological mother.

The second main type of surrogacy is called gestational surrogacy. During this type, the surrogate mother goes through implantation from an embryo that is created from the biological father’s sperm and another woman’s egg, traditional the father’s partner’s. This can be a very expensive, time-consuming, and complex procedure for all of those involved but this procedure allows for a couple who are aiming to be parents but physically can’t have an opportunity to both be biological parents.

Surrogacy Contracts

If a couple chooses to go down the path of surrogacy, especially traditional surrogacy where the surrogate mother is the biological mother, it is crucial to draft a surrogacy contract. By drafting a surrogacy contract, all of those involved can avoid legal issues and disputes after the baby is born. An example that demonstrates the importance of a surrogacy agreement is that if the surrogate mother changes her mind during the pregnancy or at birth and wants to keep the baby, she legally has that right if no agreement is documented and formed. However, if a surrogacy agreement was drawn up and in place, the surrogate mother would have to relinquish her rights of being the mother to the child.

If one is involved in a surrogate arrangement, those involved should contact a family law attorney to assist with the formal drafting of the surrogacy agreement. Within the agreement, the attorney of each side will include items such as the date of the agreement, the names of each party involved, a statement that all parties are over the age of 18 and that the mother who has sought out a surrogate is unable to sustain the pregnancy. The agreement will also include documentation that the surrogate has agreed to request physical and psychological exams. The surrogate will also provide details of their health insurance coverage and her agreement to sustain this coverage throughout the surrogate process. The agreement will have on record the maximum number of attempts to achieve pregnancy as agreed to by the parties involved, the agreement that the surrogate will not engage in intercourse during the attempts to achieve implantation, agreement that the surrogate will not terminate the pregnancy and will refrain from harmful acts that could cause harm to the baby. The involved attorneys of both sides will continue on to record all of the various agreements that have been made between the potential parents and surrogate mother, including the agreement for the surrogate to give up her rights at birth and conclude the agreement with signatures from all parties. With the surrogacy agreement, a crucial element to achieving a successful surrogacy process, having a top of the line family law attorney to guide those through the process is crucial.

State Surrogate Laws

Like many laws, there is variety throughout the United States as to what states allow and do not allow certain aspects regarding the different types of surrogacy. In the state of Arizona, surrogate contracts are outlawed which grants parental rights to the birth mother in those instances. The Arizona Supreme Court refused reviewal of the case of this law is unconstitutional so the legality behind this law remains unclear. In California, there is no surrogacy statute and the state courts regularly uphold surrogacy agreements by referencing the Uniform Parentage Act. California additionally recognizes surrogacy agreements that are between gay, lesbian, transgender, and bisexual individuals. Washington D.C. prohibits surrogacy agreements of all kinds and renders them unenforceable as well as potentially punishable by fine or jail time. In D.C., however, the act of surrogacy is very much legal. In the state of Florida, both traditional and gestational surrogacy agreements are allowed by statue for those 18 and older, however, the law excludes individuals who fall into the LGBT community. In 2010, an appellate ruling overturned the ban on adoption by prospective parents within the LGBT community, the surrogacy law in Florida limits surrogate agreements to be for married couples exclusively. Each state has the potential to be very different in terms of their laws surrounding surrogacy and with the assistance of a family law attorney, those involved with surrogacy can receive appropriate guidance and representation in accordance with the laws of the state in which they live in.