by Dr. Deborah Bauers

Created on: March 06, 2013   Last Updated: March 08, 2013

The legal rights of surrogate parents vary from country to country around the globe. In the UK, the rights of a surrogate mother universally trump those of the intended parents, making it lawful for her to choose to keep the baby though she may be a gestational surrogate with no genetic ties to the newborn infant. In India, where surrogacy has become a popular alternative to poverty, westerners flock to a country where birth mothers are readily available for hire and virtually no laws exist to prevent Indian women from being exploited and denied quality medical care. In the United States there is no federal law that universally defines the rights of a surrogate mother or protects the rights of parents who hire a surrogate to carry a child for them.

Surrogacy is a booming business, costing as much as $100,000 per pregnancy.  It can also be a risky one for both surrogates and prospective parents. Americans who wish to be a surrogate, or hire one, should acquaint themselves with the laws of the state or states involved and retain legal counsel to protect their respective interests.

WebMD defines two types of surrogacy. A traditional surrogate is artificially inseminated and then carries the biological father’s baby to term, to be raised by another mother. This type of surrogate is the biological mother because her egg fertilizes the sperm. A gestational surrogate participates in what is called in vitro fertilization. The biological mother’s eggs are harvested, fertilized with the biological father’s sperm and then implanted into a woman who has no genetic relationship with the child she carries.  

Gestational surrogacy is far more common in the United States. This is because the surrogate has no biological relationship to the child, so there is less ambiguity when it comes to who has legal right to the infant after birth. Even so, a surrogate who asserts her right, as the birth mother, to keep the child will have greater legal standing in some states than in others.  

In a handful of states including Delaware and the District of Columbia, entering into a legally binding contract with a surrogate mother is still considered illegal  because it is involves  "buying a baby" or vesting power in a contract to terminate parental rights. Other states do not recognize any form of surrogate contract as binding. In states where a surrogate contract is legal and enforceable, such a document can stipulate conditions for establishing parental rights, arrange for payment of medical costs of both the surrogate and birth of the baby, and provide for unplanned multiple fertilized eggs resulting in more than one child. A contract can even spell out how surrogate and parents should proceed if the baby is diagnosed with birth defects, in utero. Agencies that exist to connect surrogates with hopeful parents generally recommend that all parties receive psychological assessment and be represented by legal counsel.

Even when the most comprehensive surrogate contract is drawn up and the psychological readiness of the surrogate is attested to at the onset, human emotions must be factored into the complexity of what happens to the surrogate when the baby is born. Whether she is a biological mother or just the baby’s birth mom and genetically unrelated, the bonds that can form between a child and the woman who carries it should never be underestimated. The only successful surrogate is the one who is able to carry a baby to term, never forgetting that another mother will be the one to raise it.

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