Evolving Surrogacy Law Provides a Viable Alternative for Prospective Parents

Surrogate parenting is becoming a feasible alternative in an increasing number of states for persons hoping to become parents and start a family. Surrogacy can be particularly beneficial for couples experiencing fertility issues and women unable to safely carry a fetus to term. Surrogacy laws vary widely across the country. New Jersey and Washington recently enacted major revisions to their surrogacy laws and are among states setting the direction for surrogate parenting in modern society.

There are two basic forms of surrogacy. In traditional surrogacy, a surrogate mother's ova are artificially fertilized with the father's sperm. The surrogate carries the fetus to term, gives birth and relinquishes custody and all rights to the child. Gestational surrogacy involves the creation of an embryo utilizing the intended mother's ovum and the father's sperm. The resulting embryo is then implanted in the surrogate mother who carries the fetus to term.

Traditional surrogacy creates a number of legal issues. Since the woman giving birth is the biological mother of the child as the result of using her ovum, she is also the legal mother. Her parental rights must be terminated to allow the baby to be adopted by the intended mother. Further, in some states, the husband of a woman who gives birth is automatically presumed to be the legal father even if he is not the biological father. Legal termination of his parental rights must also occur to allow adoption by the intended parents.

These legal issues led to a significant New Jersey court ruling in 1988 known as the Baby M case. In that situation, a surrogate mother was implanted with the intended father's sperm to conceive a child. Rather than give the child to the intended parents, the surrogate fought to keep the child. The court ruled that the surrogacy contract between the parties was void based on public policy. The court declared the surrogate was the child's legal mother but, ultimately, awarded custody to the intended and biological father. The court ruling ignited a national debate on surrogacy laws spurring some jurisdictions like Washington State, New York and Washington, D.C. to ban surrogacy.

Gestational surrogacy, the most common method used today, eliminates some of the legal problems raised by the traditional method. Since the intended mother's egg is used, she remains the biological and legal mother of the child. The surrogate mother has no legal parental rights. The intended mother is not required to adopt the baby even though she is not the birth mother.

Surrogacy laws differ substantially between states. A least 18 states do not have specific surrogacy statutes. In many of those states, the law has been developed over time by court decisions. Michigan forbids compensated surrogacy. Louisiana limits surrogacy to married heterosexual couples. Utah and Texas require surrogacy contracts to be approved in advance by a court and limit surrogacy to married couples. Nebraska and Indiana declare surrogacy contracts as void and unenforceable. Arizona forbids surrogacy contacts. New York not only forbids surrogacy but imposes criminal penalties.

New Jersey is one of several states that have recently enacted comprehensive surrogate parenting bills. Under the law enacted in 2018, gestational surrogacy was legalized with substantial safeguards to protect both the surrogate and the intended parents. The surrogate must complete medical and psychological testing, be at least 21 years old and must have previously delivered a child without complications.

The surrogate may select her own medical providers, but the intended parents are allowed to cover the cost of medical care and living expenses. The intended parents must also complete a psychological exam. The law specifies that the intended parents of the child will be named as the legal parents on the birth certificate.

Washington joined the ranks of states which permit but regulate gestational surrogacy with a law that took effect in January 2019. Provisions of the Washington law specifically apply equally to same-sex couples by defining intended parents without regard to gender, sexual orientation, or marital status. The intended parents of a child born via gestational surrogacy are designated as the legal parents. A surrogate must have previously given birth and currently be raising at least one child. A woman can only act as a surrogate twice under the Washington statute.

Surrogacy Contracts and Agencies

Drafting a surrogacy contract detailing the rights and obligations of the surrogate mother and the intended parents is a vital safeguard and generally required in states allowing surrogacy. The surrogate and the intended parents must each have their own attorney to eliminate any potential conflicts. The surrogacy contract, in effect, rebuts any presumption that the woman giving birth to the child is the child's legal mother or that her husband is the child's legal father.

Contracts typically provide that a surrogate will attempt to carry and give birth to the child then surrender the baby to the intended parents immediately after birth. The intended parents agree to take custody of the child and become the legal parents with the sole responsibility to financially support the child.

Other provisions may include agreements to (1) not terminate the pregnancy unless surrogate's life is at risk; (2) restrict certain activities or maintain a specific diet during pregnancy; (3) obtain regular pre-natal care; and (4) outline responsibility for payment of medical care, lodging, maternity clothing and other expenses. The contract often describes the amount of contact to occur between the surrogate and the intended parents and whether the intended parents may be present for the birth of the child.

Surrogacy agencies exist in many states. These agencies typically screen and maintain a list of pre-approved surrogates who meet the qualifications required by that state. Agencies can also provide up-to-date information on current law. Agencies often screen intended parents as well to ensure they are financially and legally prepared for the surrogacy process. Counseling may be offered by the agency as well as coordination between all involved medical and legal entities throughout the process.

Surrogacy has become more common, particularly for same-sex and prospective single parents. Surrogacy also fills the desire for a heterosexual couple to have a child who carries the DNA of both parents when the mother is unable to safely carry a pregnancy to term. Changes to surrogacy laws are currently being debated in several states. Anyone considering surrogacy should consult with an attorney to understand the specific laws of the state in which they live and to ensure procedures are properly followed. If you have any questions about surrogacy, call the Law Offices of Peter Van Aulen at (201)845-7400 for a free consultation.

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