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What are the Legal Issues Surrounding Surrogacy?

Surrogacy involves the process of one woman carrying and subsequently giving birth to a child for another individual or couple. There are two main types of surrogacy - traditional and gestational. While each of these types differs, both can lead to various legal issues with regard to who is the "true" parent of the child - especially in cases where the surrogate mother changes her mind and wishes to keep the baby as her own.
Other Legal Considerations Regarding Surrogacy

Prior to moving forward with the surrogacy procedure - regardless of the role - it is a good idea to have all potential legal issues reviewed. It is advisable to have a surrogacy contract drawn up and signed at the very start of a relationship between a surrogate and the individual or couple that she will be working with. There are also many factors related to the state in which the surrogacy procedure will take place. Some criteria to consider in this area can include:

  • Does the state even allow surrogacy to take place?
  • Are surrogate contracts allowed in the state?
  • Are there any issues with regard to advertising for a surrogate?
  • How difficult or easy is it to transfer the parental rights and/or custody of the child from the surrogate to the intended individual or couple?

Once the state related issues have been taken into consideration, when drafting an agreement, there are other specific items that should also be included, such as:

  • Who are all of the parties to the agreement overall
  • What testing procedures will be utilized
  • How and where will the embryo implantation be done
  • How will the surrogate cooperate with the intended parent or parents once the child is born
  • Who will obtain guardianship of the child should the intended parent or parents pass away when the child is still a minor
  • What fees and expenses will be paid by the surrogate and/or the intended parent or parents
  • What type of indemnification will be given to the intended parent or parents if the surrogate should be given custody of the child after he or she has been born

A good solid agreement will clearly include all of the rights, as well as the responsibilities of both the surrogate and the intended parents of the child. It should also encompass any medical, psychological, and compensation issues. Once an agreement is in place, all parties should be happy with such, as well as with the consequences, should any legal action occur. In most cases, however, the process works satisfactorily with all parties, resulting in the beginning or expansion of a family for the intended individual or couple who has wished to have a child.