A Legal Foundation For Your Family

Can surrogates protect themselves if intended parents change their minds?

On Behalf of | May 14, 2024 | Surrogacy

When people choose to build their family with the help of a gestational surrogate, one of their biggest fears may be that the surrogate will change her mind and decide to keep the baby – even if that means violating the surrogacy contract and incurring penalties.

Surrogates sometimes have to deal with intended parents changing their mind and deciding that they don’t want their baby. What happens then?

Why parents may change their minds

Sometimes, a couple will decide to divorce or otherwise end their relationship. Neither of them may feel equipped (or want) to care for and raise a child on their own – especially one who contains the DNA of their ex. Unfortunately, some intended parents decide they don’t want the baby after doctors determine that there’s a fetal abnormality indicating that the child is likely to be born with a disability or other serious medical condition. They may try to require the surrogate to terminate the pregnancy or simply refuse to take the baby.

The terms of any particular contract are critical

While some states have laws that specifically address surrogacy, Minnesota does not. However, it does recognize and allow people to enforce surrogacy contracts that they enter into. The terms of a surrogacy contract are what the surrogate and the intended parents agree to. This may include a “termination” clause stating that if the parents want the pregnancy terminated, the surrogate will do that. Of course, with state laws around abortion in flux throughout the country, that could run up against a state prohibition in some states (although not Minnesota).

While these cases of intended parents demanding that a surrogate terminate a pregnancy are rare, they do happen. Surrogates have the right to request the terms in a contract with the parents that they feel they can abide by – and the parents have the right to reject them. Ultimately, however, no surrogate has to agree to any clause that requires them to terminate a pregnancy or to keep or take responsibility for a baby once they’re born.

Concerns about termination or rejection of a child are just some of the reasons that having experienced legal guidance while negotiating these contracts is critical to protecting everyone’s rights.