Exploring the Legalities: Can a Surrogate Keep the Baby?

Surrogacy can be a beautiful, accessible, and realistic option for intended parents who cannot conceive traditionally. For most, it begins with many questions and often concerns. Since there are no federal laws in the US that offer protections for surrogacy, questions related to parental rights and those of the surrogate often jump to the top of the list for intended parents. A frequent question intended parents ask our agency is, “Can the surrogate keep the baby?” Here we’ll take a look at some of the legalities surrounding surrogacy.*

THE IMPORTANCE OF UNDERSTANDING THE SURROGACY JOURNEY

If surrogacy is something you intend to pursue, it’s vitally important to thoroughly understand the process – not just from a legal perspective, but the surrogacy journey as a whole to ensure there are no misunderstandings along the way. As potential intended parents, you’ll be investing a lot of time, emotions and money in a process and person with the expectation of a beautiful addition to your family when the journey ends. This is why our agency is committed to protecting you and your investment, and our team of professionals is there with you for every question, concern, and milestone.

THE LEGALITIES OF SURROGACY

As we mentioned earlier, it’s essential to reiterate there are no federal laws in the US related to surrogacy – either gestational or traditional – which means that surrogacy is governed, regulated, protected, and legalized on a state-by-state basis. Note most states have legalized surrogacy. However, the regulations will vary from one state to the next. In Pennsylvania, New Jersey, and Delaware, surrogacy is considered legal.

Note: If you live in a state where surrogacy contracts are not enforceable and surrogacy is not legal/unsupported (Louisiana, Michigan, Nebraska), you’ll be happy to learn that many states will permit surrogacy for anyone who is a US resident.

CONTRACTUAL AGREEMENTS – ESSENTIAL TO THE SURROGACY PROCESS

The surrogate and intended parents must have a signed surrogacy contract, also known as a gestational carrier agreement, before embryo transfer.

The purpose of these contracts is to establish:

No matter how much you like each other, how well the pregnancy is going, and how connected you feel, this process is filled with financial and emotional investments and potential uncertainties. This is why a comprehensive contractual agreement must be in place that clearly outlines the rights, obligations, and protections of everyone in place.

Here are just some of the typical items included in the contract:

Financial Considerations: Compensation and fees to be paid to the surrogate and agency (when those payments occur and how much)
Responsibilities of the Surrogate
Responsibilities of the Intended Parents
Communication Requirements – both pre-and-post birth
Acceptance of Outlined Risk
Details of the Surrogacy Process – from IVF through the baby’s delivery
Contingencies such as the birth of multiples, miscarriage, or medical complications

Again, these basic contract items could vary by state and case-by-case basis. Contracts are not signed until all parties fully agree with the terms and conditions. Each party must be represented by independent legal counsel, which means two separate attorneys specializing in family law (specifically assisted reproductive law) review all terms with the Intended Parents and the Surrogate.

PARENTAGE ORDERS – FINALIZING DOCUMENTS & YOUR RIGHTS

The legal process for surrogacy is more than just the gestational carrier agreement. You also must obtain a parentage order (sometimes called a birth order or a parentage decree). In Pennsylvania, New Jersey, and Delaware, parental rights are reaffirmed through a pre-birth legal process, which means that when your surrogate is in the 2nd trimester of the pregnancy, the attorney will submit a request to the family court in the county where your surrogate is expected to deliver. The family court will receive a copy of your gestational carrier agreement, everyone’s identity and marriage certificates, and an affidavit from the fertility clinic stating that they transferred an embryo created by the Intended Parents to the gestational carrier. A judge will review all documentation, ensuring everything looks correct (another reason why a reputable attorney should be drafting your agreement). Then they will issue a decree that states that the Intended Parent(s) are the legal parents of the child to be born in the near future via surrogate.

This decree also goes over to vital records. They’re the ones who generate the birth certificate. We want both intended parents’ names on that certificate. After the baby is born, a record of live birth showing the date, time, and place of the baby’s arrival goes from the hospital to Vital Records. They then match the baby with the decree, and voilà, you have an accurate birth certificate!

Of note for same-sex parents, it is strongly recommended that the non-biological parent pursue a second-parent adoption as part of their parentage work. Unfortunately, if challenged in court, having both of your names on the birth certificate (and as parties to your gestational carrier agreement) is not enough to guarantee equal parental rights. What do equal parental rights look like? Being able to claim a child as a dependent under your health insurance. Being able to make medical decisions on behalf of your child. Being able to have full custody if something happened to the other parent. You are protecting your child’s inheritance rights and being recognized as a parent, even in states/countries where laws are not favorable to same-sex marriage. In some locations, this parentage action can be concurrent. Still, in others, there may be a delay in the process, so it’s crucial that your attorney files for everything you need in an expedited manner.

CAN A SURROGATE KEEP THE BABY?

This is the one question that strikes fear in the hearts of intended parents. The last thing they want to experience is investing time, money, and emotions in the process only to have the surrogate decide they want to keep the baby.

The answer is this is extremely unlikely (only a handful of infamously documented cases) and can be protected against with proper contractual language and parentage work. The gestational carrier agreement should clearly state that the baby goes to the intended parents upon birth. Additionally, the surrogate would be in contractual breach, with the gestational carrier agreement stating remedies for that breach, like reimbursing the Intended Parents for any money they have invested in the process thus far, along with other damages. In Pennsylvania, New Jersey, and Delaware, the parentage decree will have already been issued, reaffirming the rights of the IPs as the sole legal parents.

It is important to remember that gestational carriers are not giving you their baby. They are giving your baby back to you. Many often call themselves “extreme babysitters” or the “ultimate nanny.” Entering into a gestational carrier agreement with this proper mindset goes a long way in easing fears about who the parent is.

CONSIDERING AN INDEPENDENT SURROGACY?

Perhaps you’re considering an independent surrogacy and bypassing the use of a surrogacy agency. If you’re seriously considering this route, please proceed with caution. While not paying an agency to manage your surrogacy journey can result in several thousand dollars in savings, the surrogacy process is much more intricate and complicated than it might seem on the surface. Working with an experienced agency that has seen many scenarios play out is hugely beneficial when putting together a gestational carrier agreement.

We can’t stress enough how important it is to avoid the surrogacy contract templates you might find online. These generic contracts don’t typically address the legal differences from one state to the next. There is a high degree of likelihood that said contracts would include legalese that is unenforceable or not applicable in your state. These generic contracts don’t typically address the legal differences from one state to the next. Furthermore, a judge who issues your parentage order may not accept a questionable contract.

HOW TO PROTECT YOUR RIGHTS AS INTENDED PARENTS

Enlist the services of a reputable surrogacy agency like The Surrogacy Center of Philadelphia. They can provide you with a well-established built-in process that will ensure the surrogate abides by the terms of the contract.
If for any reason you decide not to use an agency, hire a surrogacy “coordinator” who can serve as a third-party custodian over the process. It’s not a perfect option, but experienced coordinators usually know how to mitigate issues.
Request a thorough psych evaluation of each surrogate candidate to identify and eliminate candidates who might be prone to emotional lapses.
Connect with your surrogate – You and your surrogate will be taking this journey together. It’s quite acceptable to build a relationship with them. If they come to trust and understand you, it will help eliminate any anxiety they have about giving you your baby.

CONCLUSION

In life, there are very few things that you will go through that are more meaningful than surrogacy. Before you even apply as an intended parent or parents, please make sure you have a very clear understanding of the legalities that surround the surrogacy process.

If you are considering surrogacy in Philadelphia, Pennsylvania or New Jersey, we invite you to reach out to our team of experienced surrogacy professionals. Our team can help guide you through the legal complexities of surrogacy and ensure that your rights and interests are protected. Contact us today to learn more about our surrogacy services and how we can help you achieve your surrogacy goals while providing the support and guidance you need throughout the process.