Issues to Consider When Thinking About Surrogacy

Whether you're part of an infertile couple or a woman who wants to share the gift of life, surrogate motherhood is an increasingly popular though legally complex undertaking. Many Americans were unaware of the concept until mid-1980s, when the "Baby M" case thrust surrogacy onto the headlines and into the American consciousness. Baby M, as she was known, was born to a surrogate mother who was inseminated with the sperm of a man who (along with his wife) had hired a surrogate to carry the baby. After the child was born, a custody fight broke out between the surrogate (Baby M's genetic mother), and the baby's father and his wife. The resulting legal dispute highlighted the fact surrogacy is a combination of difficult legal and emotional issues.

It's been more than 20 years since the Baby M case, but surrogacy still involves a maze of legal issues and a tangle of conflicting state laws. Some states explicitly permit the hiring of surrogate mothers, other states explicitly ban surrogacy, and many states have no laws addressing the topic. Anyone considering surrogacy should consult with a lawyer experienced in the topic. Because pregnancy, childbirth and parenthood are highly emotional issues, surrogacy does not always go according to plan, and a thoroughly detailed contract will help ensure everyone carries out the original intentions of the parties who are involved.

Privacy and the Surrogate Mother

A surrogate mother voluntarily relinquishes many of her privacy rights.

For example, she's agreeing to share her medical records. She's agreeing to undergo testing for genetic diseases and sexually transmitted diseases. She may be required to undergo psychological testing--and share those results with surrogate agencies, lawyers and infertile couples. The surrogate lets the couple hiring her dictate when, and with whom, she may have sex. She's may be agreeing to let the couple join her and in the delivery room, where they'll be witness to fairly intimate events.

All of these details may also potentially be shared with lawyers, surrogate agencies and even courts in the event of a dispute. A potential surrogate who strongly values her privacy, and doesn't like to share a lot of intimate details with other people is probably not the best choice of a surrogate.

Pay Attention to State Law

Because there is such variation in state law pertaining to surrogacy, it is important to talk to a lawyer--or lawyers--who understand the laws not only in the home state of the surrogate mother, but also the laws in the home state of the infertile couple and in the state where the child will be born. Among things to consider:

• Does the state allow surrogacy?
• Does the state allow surrogate contracts?
• Does the state allow you to advertise for a surrogate mother?
• Does the state differentiate between a traditional surrogate (where the surrogate is the baby's genetic mother and is artificially inseminated with the father's sperm) and gestational surrogate (where the surrogate has no genetic relationship to the baby, and receives transplanted embryo)?
• Does the state require you to use a lawyer or agency to hire a surrogate?
• How easy or difficult does the state make it for the surrogate to transfer parental rights, responsibilities and custody to the infertile couple?

Contractual Issues

To avoid disputes and misunderstandings, prospective parents, the surrogate and the surrogate's spouse or significant other should use lawyers to draw up a contract that detail each party's rights and responsibilities.

Contracts may include:

• Who is a party to the agreement? It will cover the infertile couple, the surrogate and the surrogate's husband or significant other. In addition, the contract should also identify the doctors, hospitals and counselors who will be used.
• Agreement as to the preliminary testing procedures, including physiological and psychological testing.
• Details related to implantation of the embryo or artificial insemination of the surrogate.
• Agreement about behavior, treatment and expectations once the surrogate has become pregnant. These would include a promise to carry the baby to full term; a list of unacceptable behavior and activities while pregnant; and details about prenatal care and communication between the surrogate and infertile couple.
• Agreement that the surrogate (and her spouse/significant other) will cooperate with the infertile couple after the child is born to ensure that they receive all parental rights and custody after birth; that the surrogate cooperates with the completion of the birth certificate and any hearings required to establish paternity and maternity of the child; and that the surrogate is released of all parental responsibilities and liabilities after the birth of the child.
• Guardianship instructions should one or both of the genetic/intended parents die prior to the child's birth.
• An itemized list of all covered fees and expenses and how/when payments will be disbursed.
• Indemnification of the genetic/intended parents if the surrogate is awarded custody of the child after birth

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