In the wake of the Supreme Court’s 2022 Dobbs v. Jackson Women’s Health Organization decision, which overturned the precedents set by Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), states are approaching the issue of surrogate parenting rights differently.
It was only in April of this year that Michigan passed a law allow surrogacy agreements to encompass “payment” for those who carry the child to term before turning over the newborn child to its parents. Michigan has codified its state law to spell out the specifics of surrogacy compensation, while other states, such as Massachusetts, have updated statewide laws to remove specific gendered terms in the surrogacy process to ensure equal opportunities for the LGBTQ+ community.
Changes in surrogacy law in Michigan, Massachusetts and other states are good first steps toward promoting equity and increasing opportunity for people to become parents. However, there continues to be major disparity between different jurisdictions that lack clear and comprehensive frameworks, leaving couples and surrogates vulnerable. If is crucial that to-be parents and their surrogates work with an attorney to draft a legal plan for before, during and after the surrogacy process.
Post-Dobbs Legal Questions
Following Dobbs, new ethical and legal questions have arisen regarding how each state legally defines “fetal personhood.” In Florida, surrogate mothers stand to receive financial compensation to cover reasonable expenses incurred throughout the surrogacy process. Although Florida does not yet have a fetal personhood law, policies exist in many other states, which may further complicate the overall surrogacy process. For example, Alabama’s highly publicized brouhaha LePage v. Center for Reproductive Medicine, P.C. over IVF and legal fetal personhood is a prominent case.
Such clarifications are also important in determining what rights the surrogate parent who has carried the child to term has. There are even extreme cases where the courts need to step in, including one instance in Georgia where a woman sued her fertility clinic after mistakenly implanting another couple’s baby in her uterus—effectively turning her into an unwitting surrogate parent.
While those cases are somewhat extreme, they underline the need for legal agreements regarding surrogacy arrangements—particularly to spell out what happens in the event that the parents split up.
Crafting the Agreement
Deciding to bring a child into the world is one of the most important and personal decisions. But no matter how joyous you and your partner are to become parents, you should consider a legal agreement between you and the surrogate parent. The contract should include provisions outlining how much the surrogate parent will be compensated, each intended parent’s rights, and custodial expectations.
In many jurisdictions parents-to can select a “pre-birth order” of custody to establish their legal right as the parent from the moment of birth. This is intended to head off later disputes if the couple separates.
A family law attorney can craft specific language surrounding the exigencies of what happens if the couple does break up, either before the birth or later on, when it comes to fiscal and custodial responsibility for their shared child.
A Separation During the Surrogacy
Pre-term breakups are surprisingly common and can be a difficult pill to swallow. Couples prepare to be together with their partner forever and many become parents without any legal agreement in place. In the event that a couple splits up while the surrogate is still pregnant, and if no pre-agreement is in place, family law courts will typically determine custody sharing—effectively taking the situation out of the parents’ hands entirely.
Having already invested so much time and energy (and money) into your surrogacy, it is important to have a formal agreement delineating custody arrangements so as not to further exacerbate the stress and difficulty of navigating separation. This includes aspects such as the primary residency of the child, parenting time, financial responsibilities, communication preferences, and the process for amending the agreement.
With this proactive approach, a judge or a neutral mediator will make determinations regarding what legal and fiscal obligations the parent who wishes to terminate the agreement must still abide by.
A Separation After the Birth
Despite a couple’s best intentions to stay together, feelings change, love wanes, and a breakup becomes inevitable. Determining co-parenting obligations for the parents of a surrogate child is remarkably similar to what occurs for the biological parents of a child who split up; there are no “surrogacy-specific” provisions for a judge or mediator to consider.
Courts and mediators will determine what is in the child’s best interests, even if one parent took a lesser active role during the pregnancy. For non-biological parents, parental rights might even hinge on the validity of the pre-birth surrogacy agreement (yet another reason to get a lawyer involved early on) and whether or not one party has adhered to it strictly.
It is important to note that courts in some states take a comprehensive look at the couple’s situation that goes above and beyond any surrogacy or pre-birth agreements; again, this is to put the child’s best interests front and center.
Start the Planning Process Early
As a mother myself, I know well the joys that come with becoming a parent and raising children to maturity. But, as an attorney, I am also keenly aware of how uncertain and difficult separations can be as they affect not only the spouses but also their children. The same is true in surrogacy situations. Regardless of biology, all parents must look to the long term for their child’s well-being.
The legal landscape for surrogate parents continues to shift state by state, so plan early in the surrogacy process to ensure that your child’s future will be safe and secure—and filled with love.
