Surrogacy

Surrogacy refers to an agreement wherein a woman is charged with carrying a baby for anticipated parents. Upon the birth of the child, legal guardianship is transferred to the parents. There are two types of surrogacy: traditional surrogacy and gestational surrogacy. The former refers to instances when the child is biologically related to the surrogate, who may be fertilized through in vitro fertilization or intercourse. Gestational surrogacy occurs when an embryo with the genetic material of the parents is implanted in the surrogate. The resulting child, therefore, has no genetic connection to the surrogate. These kinds of arrangements are sought when one or more of the parents are not physically able to have children or in cases when the woman is not able to carry a child for medical reasons. Surrogacy contracts may or may not involve money for the carrier; most vary depending on the parties involved and the circumstances.

Legal Background

Individual states are responsible for legal issues related to surrogacy. Laws vary significantly from state to state, where some have written laws explicitly outlining surrogacy-related issues, while others work with common law practices and guidelines. Some states, such as Michigan, forbid all forms of surrogacy and consider it a felony to enter into any such agreement. In other states, surrogacy contracts may be either drawn up or endorsed by the state; however, in the case of traditional surrogacy contracts usually not recognized as legally binding documents. States that have laws that have been described as surrogacy friendly include New Hampshire, Arkansas, California, Illinois, and Maryland. In these states, both altruistic and commercial surrogacy contracts are recognized and quickly enable the intended parents to be recognized as the legal guardians of the child. Some states refuse to recognize surrogacy contracts for same-sex couples.

Affected Groups

Surrogacy can help couples that are not physically able to have their own genetic children. In the case of same-sex couples, surrogacy provides a way of having a child with one of the parents’ genetic material. Couples may also turn to surrogacy when the woman is not fit enough to give birth to a child or suffers from a medical condition that makes it impossible. Surrogacy tourism is also a growing trend for couples in the United States, who may travel to countries where surrogacy laws are less strict or a woman will accept less remuneration to serve as a surrogate.

Challenges

There are a number of legal issues surrounding surrogacy. The agreement drafted between the surrogate and the couple is highly important, as it must cover unexpected situations, for instance if the carrier encounters a life-threatening medical issue or if one or more of the parents is killed before the child is born. All parties should be in full agreement on the remuneration for the surrogate, if it is legal. In addition, cases exist where the surrogate, after carrying the child to term, desires to keep the baby. In some cases, especially in traditional surrogacy arrangements, surrogates have won custody. All of these potential situations should be discussed and agreed-upon by those involved in the arrangement. If a situation arises that is not identified in the contract, legal action may be taken by one or more of the parties involved.