Surrogacy Contracts with Surrogate Mothers: Years Later, Still Largely Up in the Air

Years after the capability came into being, having a child through a surrogate mother who carries the baby to term is still fraught with legal perils.

And the circumstances surrounding each baby are different.

Sometimes the surrogate mother is “merely” the carrier or vessel for a couple’s own biological child. (Mother can’t physically carry the child.)

Sometimes the surrogate mother is the carrier for the biological child of one member of the couple and a third party. (One of the couple is infertile.)

Sometimes the surrogate mother is the carrier for the biological child of neither member of the couple. (Both of the couple are infertile or gay parents.)

And the applicable law of a particular state may view each of these scenarios differently.

A surrogacy arrangement may involve the following players:

  1. intended legal parent
  2. intended legal co-parent
  3. egg donor
  4. sperm donor
  5. fertility clinic
  6. surrogate mother

That’s a lot of folks to coordinate and work with.

The most common legal breakdown in the process is that the surrogate mother decides she wants to keep “her” child, for any reason or for no reason.

All told, there are about seven hundred fifty babies born this way each year. That’s about half the number that couples try to arrange.

This “cottage industry” is something of a free-for-all, at least unless and until a court becomes involved.

For the most part, fertility doctors call all the shots.

Some states require the intended parents to go through a home study and legal adoption of the baby. Some also require some type of psychological screening of the intended legal parents.

Some other states are satisfied by the surrogacy contracts alone.

Still other states don’t recognize or enforce surrogacy contracts at all.

Some only recognize surrogacy where at least one intended legal parent is biologically related to the baby.

The incredible upshot is that, at times, babies who have two sets of “parents” who want them end up in foster care while the courts try to sort things out.

A model act has been proposed by the American Bar Association to address the issues in a consistent way.

Read more in this New York Times article: 21st-Century Babies – Building a Baby, With Few Ground Rules.