Surrogacy: Legal Meaning, Private Law Family Rights and Enforceability

What is Surrogacy?

Surrogacy is a legally binding arrangement where a woman agrees to bear and give birth to a child for another person or couple, who will then assume parental rights of the child.

Surrogacy: Legal Definition

Surrogacy is a term that many people have heard, yet few fully understand—especially regarding the intricate legal landscape surrounding it. The journey is both an emotionally and legally complex process.

Surrogacy in a Legal Context

Embarking on the surrogacy journey is not merely about navigating medical procedures; it’s a profound expedition intertwined with legal, emotional, and ethical crossroads.

For the intended parents, it represents hope, a dream of parenthood, and often the culmination of many years of struggle with infertility.

For the surrogate, it is an act of unparalleled generosity, often rooted in a deep-seated desire to help others experience the joys of parenthood.

Yet, this mutual endeavour is not without its challenges. The legalities ensure that all parties are protected and that the child’s best interests are at the forefront.

This legal framework dictates the roles, rights, and responsibilities, turning a compassionate act into a binding agreement and what makes it a topic that necessitates a deeper understanding than its surface might suggest.

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What is Surrogacy?

At its core, surrogacy is an arrangement where a woman (the surrogate mother) agrees to bear and give birth to a child for another person or couple (the intended parents).

Once the child is born, the surrogate mother relinquishes her parental rights in favour of the intended parents. There are two primary types: traditional and gestational.

  • Traditional Surrogacy: In this method, the surrogate’s eggs are used, making her the child’s biological mother. The intended father or a sperm donor provides the sperm.
  • Gestational Surrogacy: The surrogate carries a child conceived using an egg and sperm from the intended parents or donors. Here, the surrogate is not biologically related to the child.

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Legal Implications of Surrogacy

Surrogacy’s legal aspects can be complicated, and they vary considerably across different countries and even within regions of a country. Some common legal considerations include:

  • Parental Rights: After the child’s birth, the intended parents must be recognised as the legal parents. In some jurisdictions, pre-birth orders are granted that confirm the intended parents’ rights even before the child is born. In others, post-birth legal processes are required to transfer parental rights from the surrogate to the intended parents.
  • Contracts: Both parties need to agree. This contract outlines each party’s rights, responsibilities, and expectations. It might also address compensation, potential medical scenarios (like decisions about multiple pregnancies or medical complications), and the surrogate’s conduct during pregnancy.
  • Compensation: Laws around compensation for surrogates differ. Some regions only permit “altruistic” surrogacy, where the surrogate is reimbursed for medical and related expenses but not paid a fee. In contrast, others allow “commercial” surrogacy, where the surrogate receives a specific payment beyond expenses.

How Is The Breaking Of A Surrogacy Contract Handled Legally?

Surrogacy contracts are designed to protect both the surrogate and the intended parents by outlining each party’s rights and responsibilities. The contract typically stipulates remedies or penalties if either party breaches the agreement.

For instance, if a surrogate breaches the contract, she might forfeit certain compensation or benefits.

On the other hand, if the intended parents breach the agreement, they might be liable for the surrogate’s incurred expenses or damages. In severe cases, litigation may ensue.

However, the best interest of the child remains paramount. Some jurisdictions may not enforce surrogacy contracts fully, viewing them as unenforceable or against public policy.

International Surrogacy and Legal Challenges

Given countries’ varying legal stances and costs, many intended parents look overseas for surrogates. However, international surrogacy presents its own set of legal challenges:

  • Citizenship and Passport Issues: A child born overseas might face challenges obtaining citizenship or a passport from the intended parents’ home country.
  • Legal Parentage: Some countries don’t recognise international surrogacy agreements. As a result, intended parents may face challenges when trying to be recognized as the child’s legal parents in their home country.
  • Ethical Considerations: There have been concerns about the exploitation of surrogate mothers, particularly in countries where regulations are lax or non-existent.

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Are There Specific Laws In The US And UK Governing Surrogacy Agencies And Their Operations?

In the US, surrogacy laws vary by state, with some states having comprehensive statutes while others don’t.

Some states regulate surrogacy agencies explicitly, requiring them to adhere to specific standards or obtain licenses.

Commercial surrogacy is prohibited in the UK, impacting how agencies operate. While it is legal, agencies cannot profit from matching surrogates with intended parents. Instead, non-profit organisations offer guidance and support.

Can A Surrogate Legally Change Her Mind And Keep The Baby After The Birth?

Whether a surrogate can legally change her mind and keep the baby after birth largely depends on the surrogacy agreement’s jurisdiction and specifics.

In many places where surrogacy is permitted, pre-birth or post-birth orders are utilised to establish the intended parents as the child’s legal parents, thereby reducing or eliminating the surrogate’s legal rights to the child.

However, in some regions or situations, if the surrogate is the biological mother (as in traditional surrogacy), she might have a stronger claim or a specified period during which she can reconsider her decision.

It is crucial for all parties involved to be aware of their local laws and have a comprehensive legal contract to address such eventualities and protect everyone’s rights, especially the child.

Can Intended Parents Request Specific Prenatal Actions (e.g., Diet, Activities) Of A Surrogate, And Is This Legally Enforceable?

Intended parents often have preferences about prenatal care when entering a surrogate agreement, including specifics about diet, activities, or other behaviours.

These preferences can be detailed in the surrogate contract. However, the enforceability of such clauses varies by jurisdiction and the nature of the request.

While it’s common for contracts to have clauses discouraging certain behaviours like smoking or drinking alcohol during pregnancy, enforcing highly restrictive or overly detailed requirements may be challenging and, in some jurisdictions, violates the surrogate’s rights.

Legal enforceability also hinges on what’s deemed reasonable and in the best interest of both the surrogate and the unborn child.

Thus, while certain requests can be included in the contract as guidelines or expectations, both parties must maintain open communication, trust, and respect.

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What Happens If The Intended Parents Separate Or Divorce During The Surrogacy Process?

If intended parents separate or divorce during surrogacy, the situation can become legally complex.

The outcome largely depends on the jurisdiction, the specifics of the surrogacy agreement, and any subsequent legal arrangements made by the divorcing parties.

Typically, the surrogacy contract will have clauses outlining the responsibilities and rights of each party, but it may not anticipate all the complexities of a separation.

If both intended parents are genetically related to the child, both may have rights and obligations unless otherwise stipulated.

If only one parent is biologically related, the non-genetic parent’s rights might depend on the contract and local adoption laws. Courts generally prioritise the child’s best interests.

The separating couple must address the child’s impending arrival in their divorce settlement to clarify custody, financial responsibilities, and visitation.

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Surrogacy offers a pathway to parenthood for many who otherwise might not have the opportunity due to medical, age-related, or other reasons.

However, the journey requires careful navigation of the legal landscape. Intended parents and potential surrogates must be aware of the laws in their jurisdiction and possibly international laws if considering overseas surrogacy.

It’s highly advisable to seek specialised legal counsel to ensure that the rights and interests of all parties—most importantly, the child—are protected and honoured.

As the world continues to evolve and it becomes more commonplace, it is hoped that clearer and more universally accepted regulations will emerge, making the process smoother and safer for all involved.


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