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Surrogacy Overview

Legal Issues Surrounding Surrogacy
Christensen Von Wormer hired a surrogate mother to carry his daughter after his girlfriend decided against having children.
Christensen Von Wormer hired a surrogate mother to carry his daughter after his girlfriend decided against having children.
Steve Kagan/Time Life Pictures/Getty Images

There are two legal aspects to gestational surrogacy agreements: the contract and finalization of parental rights.

The surrogacy contract should be drafted, reviewed and signed at the beginning of the relationship between the intended parents and the surrogate. A solid contract will outline the rights and responsibilities of the intended and the surrogate as well as compensation, medical and psychological screening, selective reduction policy, medical insurance and parental rights [source: Center for Surrogate Parenting, Inc.].

Surrogacy is controversial in the U.S., and laws on surrogacy agreements vary greatly from state to state. Some states have no laws in regard to surrogacy contracts or have declared contracts unenforceable in public policy. Many states that allow surrogacy agreements only allow uncompensated arrangements and gestational agreements (where the carrier is not biologically related to the child). Some states with surrogacy laws prohibit same-sex couples from entering into surrogacy agreements and require intended parents to be a married male/female couple.

Carriers must live in states where commercial surrogacy is allowable. [For more information about surrogacy laws in the state where you live, visit: Simple Surrogacy].

In addition to drafting the contract, the intended parents must finalize their parental rights in order to be recognized as legal parents. In some states, a pre-birth order may be filed with the court -- usually when pregnancy occurs -- allowing for the names of the intended parents to be placed on the baby's original birth certificate upon birth.

In other instances, the surrogate mother's name is placed on the original birth certificate because she gives birth to the baby. The intended mother then goes through a step-parent adoption process to be recognized as the legal mother and named on the child's birth certificate. A Judgment of Paternity is filed to recognize the intended father as the legal father of the child and place his name on the child's birth certificate.

Both the contract and the finalization of parental rights can be complicated matters depending on state laws. In 1986, Mary Beth Whitehead brought national attention to the surrogacy debate when, after being artificially inseminated with intended father William Stern's sperm and giving birth, she refused to give up the child to the intended parents. The case, known as that of "Baby M," ended without the court upholding the surrogacy contract. William Stern was granted custody, but Mary Beth Whitehead -- who donated her egg and was therefore the genetic mother of Baby M -- was given visitation rights.

However, two recent high-profile cases have established the legality and enforceability of gestational surrogacy contracts. In the cases of Johnson v. Calvert and Buzzanca v. Buzzanca, California courts ruled that the intended parents' initiation of medical procedures determines legal parental rights -- not genetic links through surrogacy, donated eggs or sperm [source: The American Surrogacy Center].

Surrogacy continues to be a complicated tangle of legal, social, ethical and technological issues. Arguments against commercial surrogacy compare it to baby buying and selling -- a "womb for rent." Some detractors also believe that commercial surrogacy uses technology to exploit women, children and the meaning of motherhood and fatherhood in our society.

For more information about infertility, Assisted Reproductive Technologies, and surrogacy law see our list of resources on the following page.