The Legality of Surrogacy

When a woman carries and delivers a child for another couple-or person-it is known as surrogacy. The woman who carries the baby may be the child's genetic mother, which is known as traditional surrogacy, or may have an embryo transferred to her uterus (gestational surrogacy). The arrangement can be considered commercial, meaning the pregnant woman receives compensation other than medical costs and reasonable expenses. An altruistic surrogacy will often involve a relative of a woman who is unable to have a baby offering to carry the baby as a gift of love. While surrogacy remains highly debatable in the United States, with the laws varying widely between states, the legal agreements generally consist of an agreement and the completion of parental rights.

Surrogacy Contract

It is imperative that a qualified attorney be involved in drafting and reviewing the contract prior to finalization. The contract stage of the surrogacy agreement can be the most complex to navigate. Both sides must be fully protected, and if fees are involved they have to be clearly laid out. Though fees can range from nothing, to an astonishing six figure number, the most common amount of money paid to a surrogate to carry a baby is from $14,000 to $18,000, in addition to medical expenses and other expenses associated with pregnancy. Expenses are usually divided into amounts to be paid monthly. Surrogates often request a fee upfront of around $500 at the time of insemination or transfer, and if the surrogate must undergo a procedure such as amniocentesis she may also ask for additional compensation.

The Impact of the Baby M Case

In 1985, the nation became mesmerized by the story of baby Melissa; a couple who resided in New Jersey engaged Mary Beth Whitehead as a surrogate for a fee of $10,000. Mary Beth was artificially inseminated with William Stern's sperm and carried the baby to term. Once the child was born, Mary Beth refused the money and ran away to Florida in an attempt to keep the baby she gave birth to. Whitehead was arrested, and a legal battle ensued. While the New Jersey court system found that Mary Beth Whitehead was in fact the child's legal mother and declared all surrogate contracts between Mary Beth and the Stern's invalid, they nevertheless awarded full custody of baby Melissa to William and Elizabeth Stern. When Melissa Sterns turned 18 she petitioned the courts to terminate Mary Beth's parental rights, and was legally adopted by Elizabeth Sterns. This particular case brought major attention to the surrogacy issue.

Pre-Birth Court Orders

The first surrogacy arrangement took place in 1976; between that time and the late 80's approximately 600 children were born in the U.S. to surrogates. Since that time the number has skyrocketed-it is estimated that over 5000 surrogate births occur each year. In order to minimize the legal issues surrounding surrogacy, many states now issue an order prior to the birth in which the names of the chosen parents are placed on the birth certificate from the very beginning. This practice essentially states that surrogacy has been legally allowed in the specific jurisdiction, and the "intended" parents are acknowledged as the baby's legal parents from the moment of birth.

Making Families or Selling Babies?

Surrogacy has its advocates as well as the other side who are strongly opposed to the practice due to ethical and legal issues. There are those who feel surrogacy turns the woman carrying the baby into a commodity rather than a parent, and equate the practice to baby selling which exploits women from a lower socioeconomic status. Questions abound regarding whether third parties involved in the surrogacy should be able to make a profit from surrogacy. Advocates of surrogacy say it is simply a humane solution which allows infertile couples to become parents, and point out that couples may end up waiting up to seven years to adopt a baby.

Finalizing the Contract

In most states the intended parents are required to finalize their parental rights so that they will be recognized as the child's legal parents; the first birth certificate will show the birth mother as the mother, then the intended parents will file the appropriate legal adoption papers. All couples who are contemplating surrogacy must be fully cognizant of all the possibilities involved in a surrogate birth, such as the birth mother bonding with the baby and changing her mind, or a fetal abnormality being diagnosed and the legal issues which would surround that diagnosis.

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