You may see a surrogacy as a generous, altruistic act or an ethically questionable practice. The fact remains that infertile couples are increasingly turning to surrogacy as a means of creating a family. If you are considering becoming a surrogate, you must be aware of your rights and responsibilities. Do careful research, and be sure to consult a qualified attorney in your state if you have any legal questions..
Identification
Surrogate mothers undergo pregnancy and childbirth for women who cannot physically bear children themselves, whether due to infertility, health risks or physical disability. In some cases, surrogates bear children for gay male couples who want to be parents. Some prospective parents prefer surrogacy to adoption, because there is an opportunity for a genetic link between themselves and their child.
Function
In surrogacy, intended parents and surrogates create a contract in which the surrogate agrees to carry and give birth to the child, and the intended parents agree to compensate her financially and/or pay for her medical expenses. Once the child is born, the surrogate gives the child over to the intended parents, and relinquishes any and all parental rights and responsibilities, including the right to visitation and/or custody. Intended parents may place restrictions or regulations on the birth mother regarding her health and safety, which may or may not be enforceable.
Types
There are two types of surrogacy. In traditional surrogacy, the surrogate's own eggs are fertilized with the intended father's sperm using IFV, or in vitro fertilization. In gestational surrogacy, the intended mother's eggs and the intended father's sperm are used to produce an embryo, which is implanted into the surrogate's uterus.
Significance
Traditional surrogate mothers have more rights than gestational surrogates, because they can claim a biological link to the child. Adoption.com notes that because of this biological link, in some states traditional surrogacy agreements are treated like adoptions. In these states, a surrogate mother can't consent to give up the child until after his birth. Once she consents, she has an opportunity to change her mind. If a traditional surrogate refuses to give up the baby--a rare occurrence, but possible nonetheless--she has a better chance of retaining custody than a gestational surrogate.
State Laws
Surrogacy laws vary widely from state to state, according to the Center for American Progress. In Arizona, surrogacy is prohibited, and any surrogacy agreement is legally void. Michigan and New York have criminalized surrogacy. All contracts are void, and participants can be penalized with fines and/or jail time. In Indiana, Kentucky and Louisiana, one or both types of surrogacy agreements are considered void and legally unenforceable. North Dakota and Washington allow some arrangements, but prohibit others. Arkansas, Florida, Illinois, Nevada, New Hampshire, Texas, Utah and and Virginia permit surrogacy, but regulate surrogate agreements. The remaining states have mixed or murky surrogacy laws.
If you are considering surrogacy, it's important to know your state laws. You may write a contract that you feel protects your rights, but if it's not recognized by your jurisdiction, you will have no legal recourse if it's violated.
