Steven H. Snyder & Associates Attorneys at Law

Kim Kardashian's infertility sheds light on gestational surrogacy

Infertility is more common than most people realize. For those couples learning they cannot conceive or carry a child, it can feel like you are alone in the world. However, the truth is that literally millions of men and women in the U.S. are experiencing infertility.

Celebrity Kim Kardashian recently went public with her own infertility. Due to medical complications with two previous pregnancies, her doctor has advised her against trying to carry another child. To expand their family, she and husband Kanye West are planning to have a gestational carrier (surrogate) carry their child for them.

What is gestational surrogacy?

Gestational surrogacy is when a woman carries another woman's fertilized embryo to term. This means the carrier is not genetically related to the child. For clarity, if Kardashian decides to go forward with gestational surrogacy, the child - while being carried by another woman - would be genetically both Kim's and Kanye's child.

This is an important distinction from traditional surrogacy, which is where the woman carrying the child also donates her own egg and is both the resulting child's genetic and gestational mother.  

What are the legal risks with gestational surrogacy?

Without a doubt, couples need to work with an attorney if having a child through gestational surrogacy. For a few reasons, there can be legal troubles.

California, Nevada and Illinois are among the states in which gestational surrogacy is explicitly legal. In other states, the practice of surrogacy for compensation remains a criminal offense, as it is in Michigan and New York.  In many states, surrogacy is successfully accomplished, but it isn't either explicitly legal or illegal. Without the clarity of consistent laws, it is unclear in each surrogacy exactly what legal processes and documents must be utilized. 

Of these legal documents, one of the most important is the gestational carrier agreement.  This is the document that clearly states the parties' collective intent and their respective rights and responsibilities, both before, during, and after the pregnancy.  Without an express agreement, it may be difficult or impossible to establish the intended parentage upon the child's birth. This is what lays the foundation for who the ultimate legal parents are - the couple anxiously awaiting the birth of the child rather than the woman carrying the child.

Whether the woman carrying the child is a close friend or family member, a woman matched through a reputable matching agency, or located in some alternative manner, the prospective surrogate's proper screening, the paperwork, and the legal process should be the same.

Minnesota introduces legislation to create surrogacy standards

Earlier this year, the Minnesota Gestational Carrier Act was introduced to Minnesota legislature. If approved, this act would create appropriate regulatory standards for surrogacy in the state. Currently, various counties and individual judges are not always on the same page, offering different interpretations for what needs to be done to protect the carrier and intended parents. This makes an already difficult process even more difficult.

Overall, surrogacy is an extremely satisfying and rewarding experience for both the woman carrying and the parents awaiting the birth of the child. Because surrogacy is a process fully discussed and agreed upon before a pregnancy ever occurs, it is highly reliable and successful.  Less than one-half a percent (.005%) of surrogacies ever lead to any conflict between the surrogate and the intended parents.  That compares to a thirty to forty percent (30-40%) frequency of conflict in adoption placements.  Therefore, it is clear that surrogacy is distinctly different and a much more stable process than adoption.  Almost all surrogates decide to go through the process primarily because they have a true calling to help another family experience the joy of parenting they themselves have had. For the soon-to-be parents, gestational surrogacy provides a way to be able to grow their family. If approved, the Minnesota Gestational Carrier Act would further support both surrogates and families alike while making the process more reliable and safer for all of them.  

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