Types of Surrogacy Arrangements
The first type of surrogacy arrangement, traditional surrogacy (TS), involved a surrogate using her egg to achieve a pregnancy for the IP. In a TS arrangement, the surrogate has a genetic relationship with the baby, which can complicate the legal relationship between the surrogate, the child, and the IP. For this reason, TS is no longer favored. The second type of surrogacy, which is today the most common form of surrogacy arrangement, is gestational surrogacy (GS), which requires IVF. In a GS arrangement, the surrogate will not share a genetic connection with the child.
The Impact of In Re Baby M
Many groundbreaking legal advancements involving surrogacy came from one Michigan attorney, Noel Keane, who drafted the first uncompensated TS agreement in the United States in 1976. He was also the drafter of the most infamous compensated TS agreement, which led to litigation in In re Baby M. When the surrogate shares a genetic connection with the baby, there is always the risk that things will get complicated and messy, which is what happened in Baby M.
In Baby M, a married couple from New Jersey had difficulty conceiving in the mid-1980s, so they placed an ad in the newspaper seeking a surrogate. The couple and the surrogate agreed to a TS, which involved the husband providing his sperm so that the surrogate could undergo AI. Once the pregnancy came to term, the agreement called for the TS to turn the baby over to the birth father and intended mother. However, after giving birth, the surrogate decided she wanted to keep the baby, and ultimately the court found the surrogate contract was unenforceable because it violated public policy—the state did not condone baby selling. Baby M was an unfortunate example of when surrogacy contracts go wrong, but the case provided a framework of risks that attorneys should try to avoid when creating surrogacy agreements.
Steps Before Forming a Surrogacy Agreement
There are a few paths that an IP can take once they decide to begin their journey toward surrogacy, and different states have different laws governing valid surrogacy arrangements. Because the rules vary so widely from state to state, a surrogacy center is often a good resource. A surrogacy center typically has attorneys, medical resources for potential egg and sperm donors—and pre-approved surrogates that IPs can be connected to within a framework that aligns with the specific state’s surrogacy laws. A potential surrogate and the IPs are often required to undergo a psychological evaluation, performed by a licensed professional. The psychological evaluation will often include a range of tests that are determined to be “necessary by the mental health professional, in accordance with accepted psychological standards in the surrogacy industry.”
This psychological evaluation is an added layer of protection to help make the process as smooth as possible and ensure that all parties fully understand the process and what to expect from the surrogacy agreement. This is another callback to the lessons learned from Baby M, where the surrogate sued Keane because she felt that she was not adequately prepared for the role of a surrogate. In addition to the psychological screenings for surrogates, some surrogacy centers include counseling, social workers, and mediation with their services.
State Requirements for Surrogacy
Some states regulate surrogacy arrangements, and several require a layer of protection for their surrogacy agreements. One example is a surrogate broker, a requirement for a surrogacy agreement in Washington state. The surrogate broker acts as a neutral third party to help match the IP with a potential GS. Typically, there are strict requirements for surrogate brokers, but this is another area where laws differ. In Virginia, the use of a surrogate broker is prohibited. Louisiana is one of the more restrictive states for people interested in surrogacy. In 2016, Louisiana’s then-governor signed into law HB 1102, which essentially restricts the use of surrogacy to married, heterosexual couples, because IPs must use their own gametic material— no donor sperm or eggs may be used. In addition to the gametic restrictions, the law also requires that the surrogacy agreement be approved by the courts prior to initiation of IVF. The GS may not be compensated for her services; only healthcare-related costs are able to be reimbursed. The Louisiana law prohibits anyone from entering into a surrogacy agreement that is not sanctioned by law; anyone involved in a contract not sanctioned is subject to civil and criminal penalties. Because of the various ways surrogacy is enforced around the country, it makes sense that attorneys are recommended or required to ensure compliance with all state laws.
The Surrogacy Agreement
The goal of any contract is to create a specifically enforceable agreement, perhaps more so when the contract is a surrogacy agreement. A surrogacy agreement should be an extremely personalized contract for the parties involved, and for that reason, there is no one way to draft the agreement, especially because each state sets its requirements. A surrogacy agreement aims to ensure that all parties’ needs and rights are adequately protected. While not an exhaustive list, most surrogacy agreements likely cover compensation for the GS, the risks and liabilities for the GS and IP, requirements for the GS’s health during the pregnancy, expectations for medical appointments, and details regarding the birth plan.
The drafting and negotiating will typically be handled by the independent counsel for the IP and GS. For better or worse, attorneys increase the cost of the transaction, but their participation also adds protection for the IP and the GS. Without the assistance of attorneys, the IP and GS may fail to adequately or accurately document their arrangement, or fail to incorporate important protections into their agreements. Surrogacy is personal and emotional—the hope is that attorneys will draft a surrogacy agreement that is fair and appropriate for all parties and will be enforceable. Once both sides are happy and the agreement has been signed, the GS can begin the AI, or more typically, the IVF process.
Enforcing the Surrogacy Agreement
One of the most common questions surrounding surrogacy is whether it is legal. No federal laws govern surrogacy—enforcement of surrogacy agreements is left entirely up to the states. Unsurprisingly, that means there is no consistency in how these agreements are handled. Generally, there are three ways surrogacy agreements are viewed. The first tier of states are surrogacy-friendly. In these states, surrogacy is viewed as freedom to contract—people can participate in any contract that does not violate public policy, and these states do not consider compensated surrogacy to be baby selling. The states in the second tier, Louisiana, Michigan, and Nebraska, are not surrogacy-friendly. These states typically “do not recognize or enforce surrogacy contracts, and they have statutory or case law which prohibits compensated surrogacy. … Compensated surrogacy agreements or any surrogacy agreement which goes against the state’s laws may be subject to fines or criminal penalties.” In Michigan, compensated surrogacy is illegal, and violation of the law can result in a prison sentence of up to five years and a $50,000 fine. The third tier of states is the gray area of surrogacy—“surrogacy can be practiced in these states, but laws may offer varying or uncertain levels of protection for surrogates and intended parents.”
After determining whether a surrogacy agreement is enforceable under state law, the next issue is how the state handles pre-birth orders for surrogate births. Congress passed the Uniform Parentage Act (UPA) in 1973 to formally define the relationship between a parent and a child. Under the UPA, the birth mother is the presumptive biological and legal mother to a child, and if the woman is married, her husband is the presumptive biological and legal father. However, a GS will not have a biological connection to the child. To overcome the maternal and paternal presumption, a pre-birth order can be drafted by the IP’s attorney and submitted to the court to prove parentage before birth. “Because of the UPA, there needs to be an acknowledgment of parentage by the court in order to establish the [IP] as the child’s true legal parents.” Pre-birth orders are typically arranged before the birth and usually signed seven months into the pregnancy, which helps ensure a smooth discharge for the GS, the IP, and the baby. If the state does not authorize pre-birth orders, the IP and the GS will have to provide documentation to the court after the birth that states that the GS has no legal right to the child and that the IP is the legal parent to the child. In this case, the IP will likely have to formally adopt the child.
Baby M was also illustrative in this area, especially considering it was a TS agreement. Because Baby M was conceived via AI, with the intended father’s sperm, the biological father was automatically granted paternity rights and was listed as the father on the birth certificate. Baby M’s biological mother was the surrogate. In a TS, the intended mother would need to formally adopt the child, which requires the biological mother to relinquish her maternal rights. The parties to Baby M did sign a TS agreement, and the surrogate was supposed to forgo any legal rights to the child. When the surrogate challenged the agreement, the court declared the contract unenforceable, and the surrogate was granted visitation to the child.
The lessons learned in the nearly 40 years since Baby M have continued to shape surrogacy. Careful drafting, knowledgeable attorneys, and clear communication are essential elements to an enforceable surrogacy agreement. At the end of the day, surrogacy involves real people—the IP whose goal is to have a child and the surrogate who selflessly offers their services to achieve that goal—and all their needs must be protected in order to have a successful agreement.