Sometimes couples who are unable to conceive a child on their own choose to use a surrogate mother, in which case another woman carries their child. The United States, unlike many countries, has no national policies governing assisted reproductive technology, including surrogacy and artificial insemination. Moreover, state laws vary widely from one state to the next.
As surrogacy is becoming more popular, legal issues are starting to proliferate. The issues surrounding surrogate motherhood and surrogacy agreements can be complex. Following is a look at common legal issues that arise in surrogacy situations.
Types of Surrogacy Arrangements
In the most common surrogacy arrangement, a married couple in which the husband is fertile (but the wife is unable to carry a pregnancy) enter into a privately arranged contract with a fertile woman. This fertile woman (called a "surrogate mother") agrees to be artificially inseminated with the sperm of the fertile husband. Alternatively, the surrogate mother may be impregnated with an embryo produced by the wife's ovum.
In either case, the surrogate mother carries the pregnancy until delivery, and then -- by terms of a typical agreement -- assumes no parental rights or responsibilities, and relinquishes the infant to the couple initiating the contract.
Surrogacy, Artificial Insemination, and Fertilization
In an artificial insemination case, in which the husband is the donor to the surrogate, a court order can be obtained prior to the birth of the child that the husband is the father of the child. After the child is born, the surrogate mother signs consent forms which either terminate her parental rights, leaving the man with sole custody of the child or which allow the wife of the couple to adopt. In a case involving egg fertilization outside the womb and an embryo transplant to the womb of the surrogate, a pre-birth court order can be obtained indicating that the couple is the child's biological parents. In this case, no adoption is necessary.
More Legal Issues in Surrogacy Situations
The desire to have a child who is genetically related to at least one parent may make surrogacy a more attractive option than adoption for some couples. When women take on the role of surrogate mother to assist members of their own family, few legal complications arise. In some cases where women have agreed to the procedure for financial compensation, major legal issues have arisen. About half the states have laws which address surrogacy. In some states, surrogate mother contracts are illegal and entering into them can result in criminal charges. Other states rule that such contracts are invalid.
Do I Need An Attorney?
Surrogacy laws are constantly changing. It is important to consider consulting a family law attorney for advice. A skilled family law attorney can help draft an enforceable surrogacy contract that addresses the important issues and the contingencies that could arise before, during, and after the pregnancy. Also, surrogacy and artificial insemination laws vary widely by state, and your attorney can help explain your state's rules to you. Most offer free consultations, so your first step should be to contact an experienced family attorney.