As our readers may know, Minnesota law recognizes legal arrangements between gestational surrogates and the intended parents. At present, however, the law doesn’t provide specific topics and protections that need to be addressed in those agreements.
Currently, proposed legislation that would spell these things out is making its way through the state legislature. Until (or unless) this passes and is signed into law, all parties to a surrogacy arrangement need to negotiate their own terms – with each side having its own legal representation to protect their rights.
Both sides need to protect themselves from a change of heart (or mind)
The largest concern on both sides is what happens if the other changes their mind. Many parents who build their family using a surrogate say their greatest fear is that the surrogate will decide to keep the baby. Penalties for doing so can be addressed in the contract. Not choosing a first-time surrogate is another way to minimize the chances of this happening.
Surrogates also need to ensure that the agreement protects them in case the couple (or single person) with whom they’re contracting changes their mind at any point – particularly if they’re already pregnant with the child.
This may happen for many reasons. Sometimes couples break up and don’t want to co-parent a child. Sadly, sometimes it’s determined during testing during the pregnancy that there’s some kind of fetal abnormality that will cause the child to have a disability or serious medical condition. What if they want the surrogate to have an abortion?
The proposed law addresses this by saying that a surrogate can’t be forced to undergo any medical procedure. It’s still crucial to cover this and other unpleasant scenarios in the agreement.
While a solid surrogacy agreement protects both the intended parent(s) and the surrogate, it can help if both sides generally are on the same page about what they would want if unexpected circumstances arise.