Steven H. Snyder & Associates Attorneys at Law

Things to know about surrogacy in Minnesota

Minnesota currently has no law in effect to regulate or govern surrogacy. Because of this, surrogacy has become a visible issue in the state legislature. Currently, legislators are considering a new bill that would reasonably regulate both the surrogacy process itself and the individuals who are participating in the process - including both surrogates and intended parents.

The bill has received a lot of attention from various groups throughout the state, many who support surrogacy and some who strenuously oppose the practice. In this post, we want to address some aspects of surrogacy that participants in the process should consider before resorting to the surrogacy process to start a family. 

What you need to know about surrogacy

Surrogacy is a very complicated and time-consuming process. If you are seeking a surrogate, you may spend a great deal of time finding a stable, appropriate match for your situation. If you are a surrogate, you will also want to be sure that the family you choose to help is stable and matches your goals in and expectations of the process. Both of these intentions can be best evaluated and met through a psychological evaluation process conducted by a social worker or psychologist experienced in all facets of surrogacy.

Once you determine that all prospective parties are suitable for the process - and each other (two very different standards!) - then you will want to memorialize your expectations and understandings in writing in a properly- and freely-negotiated surrogacy agreement signed before any pregnancy occurs.

This process is most reliably and effectively completed with separate, independent attorneys representing each of the surrogate (and her spouse, if any) and the intended parents. Without this written road map, there are too many potential missteps and problems that could occur. Cases without proper counseling and legal representation are the cases that result in irreconcilable conflict and end up in the newspapers as examples of surrogacy-gone-wrong.

The fact is, surrogacy is much more complicated than it appears. There are many different issues that must be examined to make sure that you are doing everything you can to ensure that the process moves forward according to your specific wishes. If you put in the proper time to plan it all out before you get started, you can make the entire process much less stressful.

Should surrogates be paid?

This is a highly controversial topic that seems to draw the most debate in the surrogacy process. The Minnesota bill does not directly address this topic because of the varying, opposing opinions on the matter.

The primary reasons for opposing reasonable compensation to women who act as surrogates are (1) it results in "baby selling," and (2) it is the "financial coercion" of poor women to act as surrogates against their will and their best interests.

As for the "baby selling" allegation, this is simply a negative emotional, but inaccurate, portrayal of surrogacy. The surrogate is not selling "her" baby. The embryo that is transferred to her uterus is, in fact, the result of the intended parents' medical efforts and intent to have their own child.

Before the embryo is transferred to the surrogate's uterus, it is the intended parents' "child in waiting." When that child is temporarily transferred to the surrogate for gestation, by the open agreement of all parties, it does not make the child the surrogate's child; it remains the intended parents' child. The surrogate cannot sell something that does not belong to her in the first place, and the embryo and the resulting child are not hers. The allegation of baby selling is simply an emotional use of words to mischaracterize surrogacy and create a misunderstanding of its purpose and effect.

Neither is surrogacy the "financial coercion" of poor women. While this may be true in developing countries like India, Thailand, Mexico, etc., in which a large population of poor women are societally preyed upon to create a predatory surrogacy industry, this is NOT true in the U.S.

Women in the U.S. have gone through three waves of feminism and are notably independent and self-determinative. In addition, in an informal poll of a population of Minnesota surrogates, the average personal income of actual past surrogates was in excess of $40,000, and their average household income was in excess of $100,000. This clearly refutes opponents' claims that surrogates are all poor women who are economically coerced into acting against their will and their best interests.

Opponents also claim surrogates will start over-charging for their services out of greed. The reality is that surrogacy is already a very expensive process, and any surrogate who charges an excessive fee for her services will greatly reduce the number of people who can afford and are willing to use her as a surrogate. The "free market" environment of the U.S. in general will also serve to keep surrogates' fees reasonable. Most families simply cannot afford the high costs that a surrogate may charge, and they will look for a more affordable match.

What you should do if considering surrogacy?

Surrogacy is a highly reliable and stable process in the U.S. if you follow reasonably established steps and procedures. The failure rate of properly-managed surrogacies in the U.S. is less than a half percent. When surrogacy is done without the normal steps and procedures, the failure rate increases, though still not significantly.

Nevertheless, since it is always possible that you could be one of the sad cases, you should consult an experienced surrogacy attorney as soon as possible in the process to protect your rights and your child. An attorney familiar with the challenges of assisted reproduction law can ensure that you are making the right choices that you properly protect your family at all stages of the process. 

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