A Legal Foundation For Your Family

Deciding whether surrogacy is an option for your family

On Behalf of | Dec 4, 2019 | Uncategorized

There are no clear standards across the United States when it comes to using a surrogate mother to have a baby, and Minnesota is no exception. There are no laws prohibiting (or permitting or regulating) gestational or traditional surrogacy in the state.

The Minnesota Gestational Carrier Act was introduced as a way to implement statewide standards instead of relying on the varying policies of individual fertility clinics and surrogacy administrative agencies and a patchwork of outdated laws, rulings, and regulations from across the state.

Two types of surrogacy

The Centers for Disease Control and Prevention (CDC) says about 6 million women in the U.S. have difficulty getting pregnant or staying pregnant. Those couples who suffer from uterine infertility (the inability to successfully carry a pregnancy to term and live birth) are forced to turn to the generous assistance of women who choose to act as carriers for their children through surrogacy, of which there are two types:

  • Traditional: A surrogate is artificially inseminated with the father’s sperm and then carries the baby to term and delivers it to the couple to raise. The surrogate is also the egg donor and the baby’s biological mother.
  • Gestational: The surrogate is impregnated through the process of in vitro fertilization (IVF), where eggs from the mother or a different egg donor are fertilized with sperm from the father. Although the mother doesn’t carry the child, she may or may not be the biological parent.

Minnesota laws concerning parentage orders

Minnesota law specifically prohibits pre-birth parentage orders. The relevant language (paraphrased) states that “all proceedings” in a paternity (or maternity) matter SHALL be STAYED until AFTER the birth of the child except service of process and depositions to preserve testimony. Thus, courts should not be routinely granting judicial orders determining parentage before the child is born. Any such orders may be voidable since they are expressly prohibited by the relevant statutory language.

Nevertheless, it is still possible to efficiently establish the desired parentage of the intended legal parents; it just should most reliably be done after the child is born. The process varies depending on the genetic relationship of the various parties, but, whether both intended parents are genetically related to the child, only one of them is, or neither of them is, there is a viable legal pathway to parentage that complies with the existing statutes. In some cases it will be a simply paternity/maternity proceeding, and in others it may require a step-parent adoption.

Typically, the whole process can be completed within approximately a week after the child’s birth and birth records obtained five to ten days thereafter regardless of what procedure is necessary. This true whether the parties have participated in a gestational or a traditional surrogacy, though the surrogate’s ongoing consent and participation in the process is necessary for both.

Choosing a surrogate

While there are no regulations over who can be a surrogate mother, the medical website WebMD recommends choosing someone who:

  • Is 21 years old or older
  • Has already given birth to a healthy baby and understands the medical risks as well as the emotional issues of being pregnant
  • Passes psychological screening by a mental health professional
  • Signs a contract outlining her responsibilities for prenatal care and agrees to give you the baby after birth

Seek knowledgeable legal advice when pursuing surrogacy

Nearly 750 babies are born each year in the U.S. using gestational surrogacy. For many, it’s the only way for both partners to be biological parents. A Minnesota attorney with over 30 years of experience handling surrogacy cases can help you navigate what can be a complicated and confusing process to help you build your family.