Written by attorney Matt Miller | Jun 7, 2010

Legal considerations of surrogacy

Presently in the United States, millions of Americans have fertility issues. These issues may involve the potential father, the potential mother, or both intended parents. In years past couples who realized fertility difficulties had few options other than to seek to adopt.

While adoption is very fulfilling and a wonderful solution for infertile couples, modern science and medicine now allow fertility-challenged couples to have a child and to participate in the birth process from conception. More importantly, medical advances also allow fertility challenged couples to have children that are genetically/biologically related to one or both members of the couple through surrogacy.

What is surrogacy?

Surrogacy is simply the interaction between intended parents who desire to have a child but cannot without assistance and a woman acts as the surrogate to assist the intended parents in having a child. The parties desiring to have a child are generally deemed intended parents because they are the people that will ultimately be the parents and legal guardians of the child that is produced through the surrogacy.

There are two primary types of surrogacy relationships: "traditional surrogacy" and "gestational surrogacy."

In a traditional surrogacy, the child born of the relationship is the biological child of the surrogate mother and the intended father. As such, the surrogate's own biological egg is utilized to produce the child. In this scenario, the surrogate mother becomes pregnant through artificial insemination of her egg. The sperm used to fertilize the surrogate's egg is generally provided by the intended father but may also come from a sperm donor. As the biological mother of the child, the surrogate is genetically related to the child.

By contrast, in a gestational surrogacy, the biological egg of the intended mother is used instead of the egg of the surrogate. The egg of the intended mother/parent is fertilized with the semen of the intended father or that of a donor and then implanted in the surrogate through in vitro fertilization and a transfer procedure. The baby born of the relationship is the biological child only of the intended parents and has no genetic link to the surrogate.

Legal issues

Gestational surrogacy is presently the most popular type of surrogacy as it involves a genetic link to both intended parents. If you are considering surrogacy as either an intended parent, or as a potential surrogate there are numerous legal issues that must be addressed, dictated at a state level. These issues should be addressed in a surrogate contract between the intended parties and the surrogate.

An attorney should draft a surrogate contract

Any compensation of the surrogate is also addressed in the contract as well as all terms and conditions of the surrogacy itself. Depending upon the specific state's law in issue and whether the surrogacy relationship is a traditional surrogacy or a gestational surrogacy, an adoption of the child along with termination of the surrogate's parental rights may or may not be necessary. As the surrogate arrangement invokes complex issues falling under the parties' constitutionally protected parental and reproductive rights it is further essential that legal representation be obtained; and, that the specific laws of your state and the state of the surrogate be carefully consulted as the laws vary widely from state to state on enforcement of surrogate contracts, and even the legality of a surrogate contract.

Not all states enforce surrogate contracts

Presently some 26 states have established law that recognize and address surrogacy.Several other states have laws that hold that surrogacy agreements are invalid to one extent or another, or are only valid if certain specific criteria are satisfied, even though surrogacy itself is not prohibited. While it is informative it should not be relied upon without consultation with a licensed attorney in each specific state.

The law usually favors surrogate mothers

As surrogate mothers provide an extraordinary service for the intended parents, most surrogacy contracts also have built in safe-guards for the surrogate to ensure her protection and compensation; and, to ensure that she does not realize any costs or expenses that are not paid for by the intended parents. However, each surrogacy relationship is different and the terms and specifics of the relationship can be as complex or simple as the parties desire.

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