Through surrogacy, a woman carries a baby for an infertile or same-sex couple. Typically, an agency matches the parents-to-be and a perspective surrogate, who must agree on terms that might include payment to cover medical or living expenses during the pregnancy. Conception occurs via insemination, and the surrogate gives the newborn to the couple after delivery. In some states, the surrogate signs away her parental rights before the birth.
What Is Surrogacy?
Traditional surrogacy utilizes a man’s sperm and the surrogate’s egg, making them baby’s legal parents. The man’s wife then adopts the baby through a “stepparent adoption,” according to FindLaw.com. If the surrogate serves as a gestational carrier, she’ll carry an embryo created from the father’s sperm and his wife’s egg or a donor egg. In such cases, with no biological relationship between the surrogate and the baby, courts typically view the father and his wife as the legal parents.
As of 2010, 17 states have clear laws on surrogacy contracts, according to the Human Rights Campaign, or HRC. Arkansas, California and Massachusetts don’t differentiate between types of surrogacy, while Illinois only allows gestational agreements. Indiana and Nebraska deem all such contracts “unenforceable,” although they don’t outright ban surrogacy. Louisiana bars surrogacy unless it is gestational and/or unpaid. New Jersey, Michigan and Washington bar the payment of surrogate mothers for their services.
Couples who aren’t married can’t use a surrogate in Florida, Nevada, New York, North Dakota, Texas, Utah and Virginia. Washington, D.C., has its own rules, banning all surrogacy agreements. Regardless of where they live, however, would-be parents should hire an attorney to guide them.
A Surrogate’s Rights
Most states’ surrogacy laws focus on the legitimacy of the contract, and not the rights of the woman carrying the baby. As Brian Palmer explains on Slate.com, things proceed relatively smoothly in states that give contracts a green light, and may allow the intended parents to secure legal status before the birth. If the surrogate has second thoughts or the intended parents divorce, the situation gets murky. Palmer warns against using a traditional surrogate, “as this arrangement strengthens her claim to parental rights.”
Gay and lesbian couples may find the road to surrogacy even harder. Florida outright bans the practice by such couples, and the HRC website identifies Texas, Mississippi, Utah and Virginia as states likely to block same-sex partners from using a surrogate. Not surprisingly, California appears the most likely state in which a same-sex couple can legally enter a surrogacy contract.
Celebrity couples have made headlines with babies born of surrogate mothers. “Sex in the City” star Sarah Jessica Parker and husband Matthew Broderick (“Ferris Bueller’s Day Off”) welcomed twin girls born to a surrogate in 2009. Neil Partrick Harris, of TV’s “How I Met Your Mother,” and partner David Burtka each fathered a fraternal twin — two eggs, one surrogate, they explained to People.com — born in October 2010. A few months later, on Christmas Day, singer Elton John and civil partner David Furnish announced the birth of their son via a California-based surrogate.