Surrogacy – Legal Risks

How is surrogacy treated under the law and where is surrogacy legal? 

Joel Cohen (Host): Professor, let's talk about surrogacy. What are the legal rights and legal structures that parents should be thinking of when considering surrogacy? 

Prof. NeJaime: First off, surrogacy is expensive and most people who are contemplating having a child through surrogacy are going to work with a range of healthcare providers and attorneys and so most of the legal frameworks that have been designed to accommodate surrogacy assume that there are healthcare providers and attorneys involved. What we've seen in recent years has been a real push to provide more extensive regulation for the practice. So, we have had surrogacy in jurisdictions for a very long time now and we've also had some jurisdictions that have prohibited surrogacy. So surrogacy is still prohibited in Michigan for example but New York prohibited surrogacy until two years ago until 2020. So we still have jurisdictions in which they're not very receptive. But what most jurisdictions have done is one of two things: they've either not legislated on surrogacy and so just up to courts to figure out how to muddle their way through it in other words they sort of allow it but they haven't done anything explicit or they've explicitly allowed and regulated surrogacy and that's what you're seeing increasingly in states like Connecticut and New York and California and Washington and in those states the intended parent principle is being extended to surrogacy so that the people who are intending to be the parents of the child are treated as parents of the child and their attorneys go into court and get them a judgment of parentage so that that's clear. 

Surrogacy and Birth Certificates 

Prof. NeJaime: And an important thing to know is that because the person who gives birth is not an intended parent, that judgment also often includes instructions to the vital records administrators in the state about what to do with the birth certificate. Because you want the birth certificate to list the intended parents as the parents of the child. 

Host: Oh wow so in some states the birth certificate can entirely avoid the person who gave birth? 

Prof. NeJaime: Yes and that's so this is an issue and it's an issue that's involving questions of different states’ laws and how they interact so you might have two intended parents in California and the person who's acting as a surrogate might be in Tennessee. California might have issued a judgment saying that the intended parents are the legal parents and the surrogate was part of that court proceeding and you know consented to it but if the child's born in Tennessee the birth certificate is going to come from Tennessee and Tennessee might say well we're not going to issue a birth certificate that lists the intended parents. Now I think they have an obligation to treat that California judgment as valid but that's not what's happening on the ground. So the birth certificate question can get very complicated for people who are having children through surrogacy when everyone is not in the same jurisdiction.

Host: And while it might be something that could be sorted out, doing so can be time consuming and expensive. 

Prof. NeJaime: Exactly so the parents even though California is happy to treat them as parents and they live in California they might need to go to Tennessee and one of them might need to adopt the child and they might need to terminate the rights of the person who acts as a surrogate so it will take more court proceedings and more time.

Host: And when you say one may need to adopt there am I correct that you're referring to the non-biological parent?

Complications Where the Surrogate Is Married 

Prof: NeJaime: Yes, though the biological parent would also need to do something to establish parentage. So if this person who acts as a surrogate is a married woman the law would treat her husband as the parent if the state doesn't recognize surrogacy arrangements. So that's one side of it on the other side you have states that are regulating in ways that are actually trying to protect the intended parents.

Surrogate Legal Protections During Pregnancy 

Prof: NeJaime: But also the latest thing we've seen is states legislating to protect the rights of the surrogate not to parent the child but to be able to make decisions during the pregnancy. having the right not to undergo a C-section that's not medically indicated, having the right to choose her own healthcare providers, having the right to make determinations about termination of pregnancy.

Host: That's fascinating because there you have biological parents who may feel like these are decisions that they should be making or at least that they should have a say in. 

Prof NeJaime: Yeah and in the ideal world the intended parents and the person who's acting as a surrogate have a good relationship of cooperation and they're on the same page and the lawyers and agencies will be doing work at the outset to make sure that people are aligned on the kind of choices they would make but these issues do arise and people should be aware of you know if you're someone who would make a decision to terminate the pregnancy under some circumstances you want to be sure that the person who is acting as a surrogate is okay with termination under some circumstances. 

Surrogacy and Pregnancy Termination

Prof NeJaime:Those are the kinds of things that can arise that people might not always think of. 

Host: Are there cases where the biological parents have wanted an abortion and the surrogate has refused and carried the baby to term. So there was one case in California in which the woman acting as the surrogate was carrying triplets and the intended parent wanted her to do what's called a selective reduction that it was for the health of the children to actually not be carrying three and she refused and the court didn't eventually decide that specific question she carried to term and the intended parent are is the parent of those children. I can't imagine any court that would force someone to undergo such an intrusion into their bodily autonomy but the fact that it could be part of an agreement might mean it's happening without us knowing and so new laws like the law in Connecticut say that if you have a clause that says the person has to or undergo a termination that would be unenforceable as against public policy. 

Host: And I suppose the other way around that would also be on the surrogate to make that decision a surrogate would have the right to choose to have an abortion regardless of what the biological parents wanted? 

Prof. NeJaime: Yeah so we don't have so the general thrust of these new laws is to say that while a person is carrying the pregnancy they have all of the rights to bodily autonomy that they would otherwise have but that can raise some thorny questions about the obligations that parties to the agreement have to one another and you know the hope is that courts don't get involved with that stuff because people are making decisions that respect one another's autonomy but I wouldn't be surprised if we eventually see some some issues pop up. 

Contractual Restrictions on Surrogates Diet or Health 

Host: And some of them may be less tragic. It may be you agreed you contractually agreed to only eat organic food and I think you're actually eating non-organic food. You're in breach. 

Prof NeJaime: Those exist so we so some of these laws now say the person who is carrying the pregnancy gets to make decisions about their health and welfare during the pregnancy whereas you know that these agreements sometimes include very specific provisions about the person's habits and eating and lifestyle and all of that and so those are difficult questions when we talk about someone who's not a donor of egg or sperm but someone who's actually carrying a pregnancy for nine months for intended parents. 

Legal Issues with Genetic Surrogates (Surrogate Is Also the Egg Donor) 

Host: I guess we should touch on the surrogate who is also a donor, an egg donor. It's much less common these days, I understand, but does it still happen? 

Prof. NeJaime: Yes so we don't really know but I would probably say upwards of 95 percent of surrogacies in the U.S. are what we call “gestational surrogacies” in which the person who acts as a surrogate is not the genetic parent of the child it's either an egg donor or an intended parent but some people have what used to be called “traditional surrogacy arrangements” we call them “genetic surrogacy arrangements” today and the person who acts as the surrogate is also the genetic parent so is both the egg donor and the surrogate much more affordable of a process and also can be done without as much of a intrusion into the body of the person who's acting as a surrogate or an egg donor because it can be done through just donor insemination or insemination with the sperm of the intended parent. But most jurisdictions have regulated and allowed gestational surrogacy but not genetic surrogacy and that means that if someone has a genetic surrogacy agreement that when the person who acts as a surrogate gives birth she would have to relinquish her rights and the intended parent would have to adopt the child. 

Host: Professor is this courts being a little bit discriminatory against less expensive procedures that are attempting to reach the same ends?

Prof. NeJaime: I think it is reflecting an intuition that a lot of people still have that it's a different experience to uh surrender one's genetic child than not and so they treat it more like adoption even though it is something that people are agreeing to upfront and even though the empirical literature on surrogacy suggests that women who serve as surrogates in both situations don't experience the surrogacy any differently in terms of whether they view the child as their own. 

Host: So even non-biological surrogates view the child as their own? 

Prof. NeJaime: So both gestational surrogates and genetic surrogates say this is not our child; we never view the child as ours. We view the child as the child of the intended parents and they often understand themselves as caregivers or caretakers temporarily and so a state like Connecticut now has included genetic surrogacy and allowed it and recognized the intended parents as the parents. The only difference is we require a court to validate the agreement beforeh and the reason for that is because healthcare providers don't necessarily need to be involved we really want to make sure that this is a voluntary arrangement in which people knowingly are entering into it and so that court check does it but then we're going to treat it like any other form of surrogacy I still think you're going to remain, you're still going to see the vast majority of surrogacies be gestational surrogacies because people's views about the importance of genetics. 

Example: Connecticut Parentage Act 

Host: You mentioned a Connecticut law. Professor, was that one that you consulted on?

Prof. NeJaime: Yeah so that was a law that was the Connecticut Parentage Act that I led the effort in Connecticut to pass and I felt strongly about that and so was glad that we were able to get that over the finish line and people were supportive here and it's not that I think there's going to be a huge spike in genetic surrogacy but I would like the option to be there for people. 

What is in a surrogacy agreement and what is required?

Host: One final question on surrogacy: Is there generally a contract in place is there a surrogacy agreement that is required? 

Prof NeJaime: Yeah, so there's almost always an agreement and in states that have regulated it like Connecticut and California an agreement is required and the agreement has to have certain things in it. And in some states now like Connecticut both the intended parents and the surrogate have to have independent legal representation. And then what's happening is the attorneys are going to court and saying this is a compliant agreement and so you should issue a parentage order based on it and so that's why really attorneys are pretty essential in the surrogacy process in a way that they're not for other forms of assisted reproduction. 

Can surrogates or genetic surrogates change their mind? 

Host: One question about biological surrogates: do they have the right to change their mind if they so choose at birth. 

Prof. NeJaime: So the reality is that given that there's only a few states that have treated genetic surrogacy like gestational surrogacy. In the vast majority of states if someone is a genetic surrogate they can change their mind at birth. In Connecticut now they cannot but in other states because we're essentially treating it like adoption they are the legal parent and can decide not to relinquish the child. 

Host: Which would make for certainly a complicated relationship between those to legally recognized parents. 

Prof. NeJaime: So in that case if one of the intended parents, it's usually the genetic father because his sperm the let's say he's in a same sex or a different sex relationship the non-biological parent would ordinarily then not be able to be a legal parent and custody would be shared between the person who was the surrogate and the genetic father: yes not good.