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. One method of surrogacy is when a woman who is not able to carry a child to term, but is otherwise fertile, has her embryos transplanted into the surrogate mother. The eggs may be fertilized by the biological father or by artificial insemination if the male has fertility issues. In other cases, a surrogate mother is actually the biological mother of the child as her own eggs are used to create the embryo.
In some states, surrogacy is illegal. Even in states where surrogacy is allowed, it can be a complicated process for the non-biological mother to be named as the parent, particularly in cases where the surrogate is the biological mother. The surrogate must sign away her maternal rights so that the intended mother can adopt the child. If the sperm of the adoptive mother's husband was used to fertilize the egg, the biological father is named on the child's birth certificate. Many states require that a legal contract be drawn up between the couple and the surrogate and her spouse or partner detailing all arrangements relating to the pregnancy and birth. The parties involved in a surrogacy contract should seek the advice of legal counsel to make certain that all pertinent issues are addressed and that the contract is in compliance with state and local laws involving surrogacy and adoption.
Surrogate’s Change of Heart
Sometimes a surrogate mother changes her mind and refuses to give up the child. However, in states where surrogacy is allowed, the biological mother usually does not win custody or visitation rights. In most cases, both the surrogate and the parents sign a contract to prevent this from happening. Nonetheless, there is always the chance that the surrogate mother might win her case.
Breach of Contract
Most surrogacy contracts state what the surrogate can and cannot do while pregnant. But in the end, the parents must trust the surrogate mother to do what is in the best interests of the baby. Problems can arise when a surrogate breaches the contract by smoking, abusing drugs or drinking alcohol while pregnant.
Like with any pregnancy, there is always the chance for medical or obstetrical complications, which could harm the baby or the surrogate mother. For one, there is the risk of transmission of infectious disease to the surrogate when another woman's eggs are transplanted into the surrogate. For this reason, both biological parents must be prescreened. If a surrogate develops complications early on that put her life at risk, she might want to end the pregnancy. Another problem that can occur is if doctors discover that the fetus has potential birth defects or other health concerns. In that case, the parents might decide they do not want to continue with the surrogacy. This creates all kinds of legal problems, especially if the sperm is from a donor or eggs other than the surrogate's were used for pregnancy. The question then becomes who gets to decide whether to proceed with the pregnancy.
Although some people view surrogacy as baby-selling and look down on a woman who is a surrogate, in recent years surrogacy has become more of an accepted practice. Still the ethical question remains as to whether a woman who is being paid for her surrogacy is exploiting infertile couples and entering the contract for money. Others see the infertile couple as exploiting the surrogate's body and taking advantage of a woman who needs money. Yet despite the many ethical issues at stake, statistics show that there has been a rise in the numbers of women who act as surrogates. In 2006, the Society for Assisted Reproductive Technology estimated about 260 surrogate births. However, the number of surrogacies each year is likely to be more, as many fertility clinics do not report to SART. There are also couples who enter private agreements with a surrogate in which agencies are not involved.