A Legal Foundation For Your Family

Proposed bill to strengthen surrogacy rights

On Behalf of | Jan 9, 2018 | Assisted Reproduction

Many couples anxiously look forward to the day when they can start their own family and welcome a child into the world. Unfortunately, for many couples it is not always as easy as deciding to have a child. Many end up facing their own infertility issues that prevent them from getting pregnant or carrying a child to full-term.

The Center for Disease Control and Prevention reports that 12.1 percent of women who are the childbearing age struggle to conceive. In this same age range, 6.7 percent of women are infertile. Among this age group, 7.3 million women have turned to infertility services in hopes of having a successful pregnancy.

Many women simply cannot or should not carry their own child. Rather, a safer alternative is to use a gestational carrier. The gestational carrier is a woman who will receive the embryo created by the woman and her partner, if any, and agree to gestate the embryo for and return the child to the procreating couple. In gestational surrogacy, the woman carrying is not genetically related to the fetus. The egg is either provided by the intended mother or an egg different donor. With a proper gestational carrier agreement in place, this woman will also not have any parental rights after the birth – if this is what all parties want and agree to.

How does compensation work?

Giving another family the gift of a child is truly amazing and the recipient couples are always beyond grateful. In Minnesota and most other states, a surrogate may request reasonable consideration. Not only will she receive reimbursement for all expenses that she incurs in the surrogacy process, she may also receive an additional monetary amount in consideration of her gestational services. This request would come before any embryo transfer, and the gestational carrier agreement would clearly explain any agreed upon compensation arrangement.

However, laws are not the same from state to state, and depending on where a surrogate lives, relevant state law may restrict her ability to request or receive any such consideration. Without overarching federal laws in place, many families are left with local laws that restrict their access to and use of surrogacy or the necessity of having to search and travel away from their home state to engage in the surrogacy process and procreate.

Child Parent Security Act bill

Since 1993, seventeen states have passed new laws regulating and allowing surrogacy, all but one of which allows intended parents to pay consideration for services to their surrogate. There are only a very few states left that expressly ban surrogacy, among them Michigan, Washington, and New York. There is hope on the forefront in at least one currently restrictive state with the introduction of the Child Parent Security Act bill in New York. If passed, many New York residents would no longer need to leave the state to pursue surrogacy. Rather, this bill would allow for compensated surrogacy and help further clarify and protect parental rights. The bill would also protect all parties rights and safety, including the surrogate’s, by putting reasonable guidelines and protections in place for all parties in entering into and conducting the process .

The hope is that looking to the future, there is more work and successful regulation of compensated surrogacy in all states around structuring ethical guidelines and laws to protect the rights and best interests of both surrogates and aspiring families across the country.