A Legal Foundation For Your Family

Can a surrogate decide to keep the baby?

On Behalf of | May 19, 2021 | Surrogacy

One thing that people worry about when they decide to use a surrogate is that the surrogate may want to keep the baby after the child is born. They don’t want there to be any legal drama at such an important time, and they certainly do not want to see their plans to start a family fall through.

But is there any reason to feel concerned about this? If a surrogate feels connected to the child after carrying them and giving birth, can they change their mind and decide to keep the child?

You should be legally protected from this outcome

The answer it, “It depends.”  It depends on the genetics used to create the embryo the surrogate gestates, the law of the state which is applied and under which jurisdiction is established, and compliance with any applicable surrogacy law that may be in effect in that jurisdiction.

By way of introduction, there was an anecdotal study referenced in a magazine article in 2002 relating the outcomes of approximately fifteen thousand surrogacies nationwide.  There were only 87 contested cases between the surrogates and the intended parents.  Surprisingly, only twenty-seven were surrogates who were attached to the child while the other sixty-two were intended parents who were unwilling to accept the child.  Thus, it is highly, highly unlikely any properly screened and supported surrogate will actually attempt to keep the child she gestates, and this should NOT be a significant worry for intended parents entering the process.

That being said, under some very limited circumstances, a surrogate may successfully assert parental rights.  In every contested surrogacy case to date involving a traditional (genetic) surrogate whose own egg is fertilized with the intended father’s sperm via intrauterine insemination, the traditional surrogate has been awarded parental rights, but not always custody.  This results in the genetic father and the surrogate sharing legal parentage with some sort of court awarded custody arrangement.  The legal unreliability of traditional surrogacy should the surrogate change her mind is why many professionals from physicians to attorneys to matching agency owners choose not to participate in or facilitate such an arrangement.  Although such arrangements remain legally permissible and able to achieve the intended result in most states so long as all the parties, particularly the surrogate, remain consenting to and cooperative in the legal proceedings, such professionals deem the risk of her succeeding in a disputed case too onerous to affirm such arrangements no matter the reliability or greater risk tolerance of the parties.

In addition, it depends on the law of the state in which the disputed parentage case may arise.  If the state has an existing surrogacy law that sets forth certain requirements for the process (i.e., Louisiana in which only uncompensated surrogacy is allowed using joint genetics of the intended parents), if a surrogacy arrangement does not comply with the statutory requirements or limitations, the legal result is often awarding parentage to the surrogate despite the genetics used.  A careful and clear reading and understanding of all applicable parentage and surrogacy law, and full compliance with it, is highly recommended to avoid any possible unintended outcomes.

On the other hand, in all but one aberrant ruling nationwide, in every contested case to date involving a gestational (non-genetic) surrogate who has received an embryo via in vitro fertilization and transfer of embryos created with the genetics of others, the intended parents have always been awarded sole parentage and custody of their child.  In such cases, the courts generally find a way under whatever law governs to effect the intent of the parties.

That said, this does show why it’s important to have the right legal protections in place. The surrogate should sign a contract dictating that they will give you the child after it is born, allowing you to take on parental rights. Having the right paperwork in place is critical.

Psychological screenings happen in advance

It is important to note that most surrogates are not just people who volunteer on their own and get to make that decision without oversight. With the occasional exception of surrogates who match online with aspiring parents without the advice of experienced professionals, reputable matching agencies and fertility clincis typically require all prospective surrogates to go through extensive psychological screening to be cleared to participate in the process. In this process, experts will carefully consider their mental and emotional state. It’s known that this can be a difficult process, so surrogates can work with therapists every step of the way.

Why do people worry about this?

Despite the rarity of a surrogate wanting to keep a child and the even rarer circumstances under which she may be able to, why do people sometimes worry about it? The confusion comes from the fact that the rare cases of parentage disputes are highly publicized while the overwhelming cases of cooperative, happy outcomes receive little attention.  The media prefers a highly sensationalized version of surrogacy rather than the stable, successful, and uneventful process it actually is.  Thus, the surrogacy cases of which aspiring parents are aware are the rare contested exceptions, not the thousands and thousands of happy endings.

Nevertheless, these happy endings depend on following the steps for a reliable surrogacy process which include at a minimum having reliable legal advice regarding the law of the state which will apply and the proper legal paperwork in place in advance. If you do, everything should go smoothly.