Surrogacy Law

A “surrogate” is a woman who bears a child or children on behalf of other parents. There are two typical surrogate situations: artificial insemination and in vitro fertilization. There are often numerous concerns both ethically and legally regarding surrogate arrangements.

A surrogacy arrangement is usually created when a couple, who cannot have a baby for whatever reason, contracts with a woman to carry their fertilized embryo. The rise and success of in vitro fertilization, and the increase in sperm, egg, and embryo donation have called into question the enforceability of surrogacy contracts.

Are Surrogacy Contracts Legal?

Whether a surrogacy contract is enforceable depends on the resolution of a number of issues. First, courts must decide whether such a contract is void as against public policy or voidable by the birth mother. If the contract is enforceable, then the proper remedy for the breach of the agreement must be determined. Some courts may order the mother to hand over the child, whereas other courts will only allow monetary damages.

Are Surrogacy Contract Valid Everywhere?

Each state has its own legal approach to surrogacy and surrogacy contracts. Some states make surrogacy contracts enforceable, while others forbid or even criminalize it. For example:

• Delaware, the District of Columbia, Indiana, Michigan, and  New Jersey have refused to enforce surrogacy contracts.
• In Kentucky, the birth mother has the right to void the contract if she changes her mind during the pregnancy or immediately after the birth. Some surrogacy contracts are voidable if they do not conform to state adoption statutes.
• California has held that surrogate mother contracts are specifically enforceable, at least where both the egg and sperm are donated by individuals other than the surrogate who bears the child.

Child Parent Security Act (CPSA)

During the height of the coronavirus pandemic – the New York State Legislature passed the Child Parent Security Act (CPSA), ushering in significant changes to prior New York law regarding gestational surrogacy. Gestational surrogacy is the process by which a woman agrees to become pregnant via IVF and embryo transfer and to carry and deliver a baby for intended parent(s), who will be declared to be the legal parent(s) of the child immediately upon birth. For many families experiencing fertility struggles and/or LGBTQ families, gestational surrogacy is an important family building option. For some, it is the only option for conceiving a child that is biologically related to them. 

WHAT IS GESTATIONAL SURROGACY?

Gestational surrogacy, also called partial surrogacy or host surrogacy, is the most common type of surrogacy today; in fact, Southern Surrogacy only handles gestational surrogacy cases. But how does gestational surrogacy work?

In gestational surrogacy, the surrogate (also often called the gestational carrier) is not biologically related to the baby she is carrying. Instead, the embryo is created in the laboratory using in vitro fertilization (IVF). The embryo may be created using the intended mother's (or donor's) egg and the intended father's (or donor's) sperm. It is then transferred to the surrogate's uterus at the fertility clinic.

WHAT IS TRADITIONAL SURROGACY?

In traditional surrogacy, the surrogate doubles as the egg donor and is the biological mother of the baby she is carrying; the embryos are created using sperm from the intended father or a donor in a process called intrauterine insemination (IUI). This type of surrogacy is also known as full surrogacy or genetic surrogacy. Because the traditional surrogacy process can be more legally and emotionally complicated, this form of surrogacy is now far less common than gestational surrogacy.

New York law is clear, however, that Child Parent Security Act (CPSA) only applies to gestational surrogacy – where the surrogate's own egg is not used to conceive the child. Surrogacy arrangements where the surrogate is biologically related to the child, sometimes referred to as “traditional” or “genetic” surrogacy, remain unenforceable in New York and are statutorily prohibited if the surrogate is being compensated. 

Typical Surrogate Agreements

Typical surrogate agreements cover a wide variety of topics. The most basic agreements cover issues such as:

• Parents' right to attend surrogate's medical exams as well as review the medical records of the surrogate
• Testing of all parties for sexually transmitted diseases
• Evaluation of the surrogate mother's genetic history
• The signing of an anti-disclosure statement to prevent the surrogacy from being made public
• Psychological counseling for all parties involved
• A determination of parental rights
• Whether any compensation is to be made
• Termination of the agreement

Compensation of Surrogates

There is great debate as to whether surrogates should be granted compensation for their childbearing services. Many states are trying to avoid “baby selling,” and thus, many forms of surrogacy are a felony and punishable by significant fines and imprisonment. If you are contemplating a surrogacy arrangement, it would be wise to consult with an attorney first.

Are Contracts Necessary for Surrogacy Agreements?

If you are entering a surrogacy agreement, a formal surrogacy contract is essential to the preservation of your rights as a parent. Some states require that there be a written contract for a surrogacy arrangement to be legal. Although contracts serve as strong evidence of an agreement, there is no guarantee that a contract will be upheld in court. A court will not hesitate to modify a contract if it is in the best interests of a child.

Given the complexity of the insurance requirements of the CPSA and the specific contractual requirements that must be met for the agreement to be deemed enforceable, it is recommended that practitioners speak with an experienced ART attorney before drafting their first surrogacy agreement. If the agreement is not in substantial compliance with Section 403, it is not enforceable, and the court will be required to determine parentage of the child based on the intent of the parties and the best interests of the child (FCA § § 581-203; 581-407)

Do I Need an Attorney Experienced with Surrogate Relationships?

If you are contemplating a surrogacy arrangement, it would be wise to consult with a family lawyer. The controversial nature of surrogacy agreements has led to many conflicting viewpoints amongst the states. Speaking with the proper lawyer near you will help you understand your rights and obligations, and protect your interests.