Can Surrogates Keep the Baby? – Answering The Question That Concerns Intended Parents
If you’re just beginning your surrogacy journey, one of the questions that’s likely to be weighing heavily on your mind is what happens if your surrogate decides to keep the baby. The short answer is that this is almost never an issue, so it’s not actually something you need to worry about—especially if you’re working with a well-vetted surrogacy agency and have a solid surrogacy contract in place.
In the rest of this article, I’ll go through some of the common questions and scenarios that you might be wondering about as intended parents.
Can Surrogates Keep the Baby?
As new intended parents, this is likely one of your biggest concerns, but in actuality, it’s almost never a real issue. Here are a few reasons why this is the case:
Always Work with a Reputable Surrogacy Agency
When you work with a surrogacy agency, surrogates go through psychological screening with a surrogacy specialist to make sure they fully understand their commitment to only being the carrier and not a parent to the baby. Potential surrogates have plenty of opportunities to remove themselves from the process if they have any doubts about their ability to go through with it.
Make Sure You Have an Ironclad Contract
When you have a surrogate contract in place, it protects the surrogate’s rights, but also makes it clear that they’ll surrender all rights to the child.
An Important Distinction: Gestational Carriers vs. Traditional Surrogacy
There are two types of surrogacy: gestational and traditional. In gestational surrogacy, the carrier is not biologically related to the child (both the eggs and sperm come from either the intended parents or other donors), which creates another degree of separation between the carrier and the baby.
With traditional surrogacy, the surrogate also donates her eggs, which means she is biologically related to the baby. While traditional surrogacy can be an attractive option because it saves intended parents money in egg donation costs, I would strongly caution against it because it can create an ethical dilemma. With traditional surrogacy, you’re much more likely to have a situation where the surrogate could possibly want to keep the baby.
Most surrogacy agencies will not allow traditional surrogacy and only support gestational surrogacy. While you do not have to work with an agency in your surrogacy journey, be aware that finding a surrogate on your own through an independent journey means you run the risk of a lack of screening and precautions put into place to protect your parental rights.
A Few Steps to Give You Peace of Mind
I’ve mentioned already that cases when the gestational carrier would possibly want to keep the baby hardly ever happen, but I understand that as intended parents, this can still be a cause for anxiety. So here are a few steps you can take to give yourselves more peace of mind.
Step 1: Work with a Surrogacy Agency that has a Thorough Screening Process
One of the most important steps you can take is to work with a surrogacy agency (rather than doing it yourself as an independent journey) and ensure they have a thorough screening process.
Surrogacy agencies will be very open with potential surrogates about the entire process and make it clear to potential surrogates that they can back out at any time if they feel any conflicted emotions about being a surrogate.
All surrogacy agencies require that surrogates already have children of their own. The fact that they have their own children and have high fertility means that if they wanted more children, they could easily have them.
Women tend to become surrogates because they feel strongly about helping other families to have children. Their goal is to help you rather than add to their own family. Surrogacy agencies conduct both physical and psychological screenings to get a full picture of potential surrogates’ motivation.
Surrogates enter into this contract to make money and they do not want the financial responsibility of another baby.
It’s also important to mention that surrogates can have loving and caring feelings for a baby without having any expectations of being the mother. They’re able to compartmentalize their feelings. For example, here’s what one surrogate, Sarah Jefford, wrote about her own experience:
“…the human brain is complex, and humans are capable of complex feelings and thoughts. I can simultaneously love my children and enjoy the time they are in school. Likewise, we can love your baby and have a physical reaction to baby – and still not want to raise it and take it home with us. Actually, we’d rather see you doing all the parenting, because that’s what we always intended. How does it actually feel to hand over the baby – it’s complex, and amazing.”
Step 2: Make Sure Your Surrogate is Giving Birth in a State Where the Intended Parents’ Legal Rights Are Recognized
In the US, surrogacy is legal in nearly every state (with the exception of Nebraska, Louisiana, and Michigan), but the laws are not consistent between every state and there are no federal laws that govern surrogacy. This is why it’s important for you to make sure your surrogate is giving birth in a state where your parental rights are recognized.
Again, this is not consistent from state to state. Some states are more surrogacy-friendly when it comes to parental rights. For example, California is a state that allows you to file a pre-birth order. This is a legal contract that enters the intended parents’ names on the original birth certificate and establishes you as the child’s legal parents. Read more about intended parents’ legal rights and surrogacy laws here.
Step 3: Work with a Surrogacy-Specialized Lawyer to Create an Enforceable Surrogacy Contract
A surrogacy contract includes legal protection for both the surrogates and intended parents and accounts for a range of possible scenarios to protect the baby’s well-being both before and after birth. What should your surrogacy contract include? Here are a few key points:
- Which state’s law covers the surrogacy agreement and where any court action would take place (if necessary).
- The details of conception, including whether it’s a traditional or gestational surrogacy, how many embryos will be transferred per attempt, and how many attempts will be made to implant the embryos.
- You may want to outline the carrier’s role and responsibilities during the pregnancy, which could include things like attending prenatal appointments and avoiding certain high-risk activities.
- The details of parental rights and custody so the intended parents are established as the legal parents and the surrogate is relieved of any rights and responsibilities for the child.
- A range of contingency plans that include what would happen if the intended parents die before the agreement is concluded; what would happen if any of the involved parties separate, divorce, or marry before the agreement is concluded; and what would happen in the case of miscarriage or if the child dies at birth or shortly after.
- Surrogate compensation and payment details so it’s clear what compensation the surrogate will receive and on what timeline.
- Health insurance details to ensure that everyone has appropriate coverage. Generally the surrogate will need to be covered throughout the pregnancy and postpartum on either her own insurance (or a surrogacy-friendly purchased health insurance policy), and the baby will be covered on the intended parents’ insurance from the time of birth.
What will Your Relationship be Like with the Surrogate After the Baby is Born?
Now that I’ve covered the different ways you can protect yourself as intended parents (and hopefully helped ease your mind that there’s nothing to worry about!), you might be wondering what happens after your baby is born. What type of relationship can you expect with your surrogate?
This can really vary depending on the surrogate and the intended parents’ preferences, but generally you will have developed a respectful and friendly relationship with the surrogate. You can come to an agreement about what type and level of contact feels most comfortable and appropriate for you.
A Few Unlikely Scenarios to Consider
My goal throughout this article has been to help you see that, with the proper precautions in place, your risks as intended parents are minimal. However, I completely understand that if you’re just beginning your surrogacy journey, you may be imagining all kinds of different scenarios and wondering what would happen. In this section, I’ll address some of these unlikely scenarios and what the potential outcomes would be.
What Happens if the Intended Parents Refuse to Take the Baby?
I mentioned earlier that the surrogacy contract helps to protect the baby’s well-being and relieves the surrogate of any rights and responsibilities toward the baby. This contract will also account for several potential scenarios and what would happen in each one.
Under this contract, the intended parents would be legally obligated to care for the baby. This means that if the parents were unwilling to fulfill their contractual obligations, there would be legal repercussions. The surrogate could potentially take legal action to enforce the contract and establish the intended parents as legal guardians. Because each state has different surrogacy laws and the details of the surrogacy contract can vary, it would be up to the attorneys involved to decide how to resolve this situation.
What if the Intended Parents Want to Terminate the Pregnancy?
In a case where the intended parents decide they want to terminate the pregnancy, the surrogate must respect the parental rights of the parents and cannot opt to carry the baby to term. This type of termination only happens for health reasons, and is not just because the parents “changed their mind.” Either the life or quality of life of the baby and/or surrogate must be in jeopardy for a termination to be considered. This is another scenario that should be covered in a surrogacy contract.
What if the Surrogate Violates her Contract and Gives Birth in a State Where the Contract is Not Enforceable?
As we’ve covered before, when you work with a surrogacy agency and have a surrogacy contract in place, this ensures that your surrogate will be well vetted and committed to honoring your agreement by giving birth in a state that will recognize your parental rights.
However, in the extremely rare scenario when a surrogate violates the terms of your contract and gives birth in a state that doesn’t recognize your surrogacy contract, what happens? In this case, you might have to pursue legal action in that state to establish your parental rights. You might end up needing to file for adoption in the state where the baby was born. You may also be able to establish some parental rights based on your biological connection to the baby or attempt to enforce your surrogacy contract in the state where it was signed.
The intended parents would also likely take legal action against the surrogate for violating her contract. They could sue her to repay her compensation, for damages, legal fees, etc.
My Final Thoughts: A Few Simple Steps Will Help You Avoid the Worst-Case Scenarios
To sum up: Many of the scenarios we’ve been going through here are extremely rare and unlikely to happen in real life. But that doesn’t mean they never happen. So the best way to protect yourselves is to work with a reputable surrogacy agency, a surrogacy-experience ART attorney (Adoption and Assisted Reproductive Technology), and make sure you have an enforceable surrogacy contract. Taking those steps can help ensure you avoid the worst-case scenarios and you get to focus instead on the excitement and anticipation of beginning your journey as parents.
