Can a surrogate mother keep the baby?

We are very interested in a surrogacy journey, but after reading some scary stories online, we’re worried that the surrogate mother can keep our baby. Is this true? How can we protect our family?— Arturo & Leslie

Thanks for the message Arturo & Leslie,

If you have a properly executed Surrogacy Contract in a country/state with a supportive legal framework then the simple answer is NO, the surrogate can’t keep your baby. Unfortunately too many couples decide to skip the legal safeguards and open themselves up to all sorts of risks – including that the surrogate may have a legal claim to parental rights.

The surrogate’s rights depend on the legal framework of the country or state where the baby is born. Some jurisdictions are quite friendly to surrogacy and have laws that enforce the terms of your surrogacy agreement. Other “unfriendly” jurisdictions can treat surrogacy as a crime, and won’t transfer the parental rights to the Intended Parents under almost any circumstances. Obviously, you want to choose a friendly place to realize your surrogacy journey.
 

Can a surrogate sue to become the baby’s parent?

In a litigious culture like the United States, any person can sue any other person for almost any reason. So yes, the surrogate could legally “try” to demand parental rights. The better question is “Could she succeed?”

Does the surrogate have legal grounds to sue for parental rights? This depends on your situation:

1. If you have a contract with your surrogate in a country where legislation upholds the validity of your contract, then NO. The surrogate mother has few legal options to claim parental rights. This type of legal framework protects the parents from claims by the surrogate. It also protects the surrogate from dead-beat parents who decide they don’t want to pay.

2. If you are in a country where there is no legal framework, then YES, the surrogate mother is the legal parent when the baby is born and she can make a claim to retain those parental rights.

3. Some countries have a legal framework, but the laws are antiquated and incomplete. In this case, then MAYBE. The surrogate can try to claim parental rights, but her chances of success depend on the circumstances. The United Kingdom is such a jurisdiction – and there are examples of surrogate mothers changing their minds and being granted some rights (though not necessarily full custody). Usually the surrogate would have to show that the baby is better of with her than with you.

4. If you are pursuing an Independent Surrogacy journey and have crafted your own hand-shake agreement without an experienced lawyer, then MAYBE the surrogate can make a claim to keep the baby. In such a case you may not have full protections of the law because you haven’t properly legalized your surrogacy arrangement.

It’s important to know the role that an experienced agency plays in this process. An agency puts all surrogates through full mental health evaluation, clinical interviews, and legal review – all of which filters out women who are not capable of carrying out that legal requirement. If you’re pursuing an Independent surrogacy journey, you should absolutely consult with a lawyer before anyone gets pregnant.

5. If it can be shown that you are not fit parents, then your surrogate could ask a court to set aside the surrogacy agreement and possibly award parental rights to the surrogate. What would constitute “unfit” depends on the court – but it could range from a history of illegal or dangerous behavior or failure to uphold the terms of your surrogacy arrangement.

If you’re good parents, steadfastly honor the agreement with your surrogate, and work in good faith throughout the journey, then there is no reason why your Surrogacy Contract might be set aside by any court. Don’t give your surrogate any reason to second guess her decision to put the baby in your care.
 

Would a Surrogate WANT to keep your baby?

That a surrogate would try to keep a baby is a hypothetical risk only, and enormously unlikely even in the worst legal jurisdiction. The truth is that the surrogate’s biggest fear is that the Parents will abandon the baby and that she’ll be forced to keep the baby.

Think about it. Surrogates all have their own families – it’s the #1 requirement that she have at least one successful pregnancy of her own. If she wanted more children, there are a lot of easier ways to get one than to take somebody else’s! Almost all women become surrogates in part to help provide for their own family. It’s almost unthinkable that such a woman would put the future of her own family in danger in order to pursue rights over another couples’ baby that she is not even related to.

Notice I wrote “almost unthinkable.” Despite the remarkable improbability of such an event, Intended Parents continue to worry that the surrogate is going to refuse to give the baby up.

So, let’s address this hypothetical risk.

In any of the 45 United States where either pre-birth or post-birth parental orders are available, you are well protected. California, Nevada, Illinois, Maine, and several others are the safest. If you’re worried, you should stay away from Louisiana, New York, and Indiana (as of January 2020).

A pre-birth order is a court decree that the birth certificate must be issued with the name of the Intended Parents. Once the birth certificate is inscribed, the surrogate has no parental rights and little recourse to dispute your own rights. Pre-birth orders are granted during the pregnancy (usually in the late 2nd trimester). Post-birth orders are issued in the days following the delivery.

Also in the US, there’s a significant legal differences between traditional surrogacy (where the surrogate’s egg is used to conceive the baby) versus gestational surrogacy (where the baby has no genetic relationship to the surrogate.) So if you’re considering a journey, the first safeguard is to use an egg donor OTHER THAN the surrogate herself.

If you’re not in the US, similar rules still apply. There are a small number of countries where the legal framework will dictate that the birth certificate is issued with the name of the Intended Parents. As of 2020, this list includes Ukraine, Georgia, Greece, and a few others.

Most countries will wait until the baby is born to define the legal parentage of the Intended Parents. In Canada, Australia, the UK and others, the surrogate will be listed on the birth certificate until a court decree or parental order will amend the existing birth certificate. Those process can take some days or weeks (and months in the UK).
 

How to protect yourself from the surrogate’s claiming parental rights

In seven years and hundreds of surrogacy cases, I have never encountered a surrogate who wanted to keep the baby they had been carrying.

That said, we’ve all read the widely circulated stories about surrogates who have changed their minds, and the various outcomes of those custody fights. It’s exactly because of the rarity and drama of that occurrence that the media picks up on those cases and makes them seem like a common risk. The reality is much different.

To protect yourself, and ensure that your surrogate cannot make a claim on your baby, here are a few safeguards…

1. Work with an agency with experience finding and screening surrogates and managing them throughout the pregnancy. Agencies have a built-in process to make sure your surrogate accepts her legal obligations, and to ensure everything runs smoothly.
2. If you don’t want to work with an agency, hire a surrogacy “coordinator” who has experience managing women through the surrogacy process. This person can act as a liaison, spot upcoming issues, and resolve disputed before they happen.
3. Have the surrogate candidate go through a psych evaluation with a professional therapist who is trained in spotting issues with a candidate’s ability to emotionally let go of the baby. Many surrogacy clinics will require this.
4. If you insist in pursuing your journey on your own, then maintain a close and friendly relationship with the surrogate. You want her to want to help you and be willing to make the sacrifice (giving away parental rights) on your behalf.
5. Most importantly… Get a professionally drafted and executed contract with the surrogate. Make sure the terms are explicit – what are the surrogate’s intentions, what will be her rights (if any) after the birth, what will she receive in exchange, and what are your obligations toward her. Once signed, steadfastly uphold your part of the Agreement.
 

In what countries can the surrogate not keep the baby?

Countries with explicit legislation supporting commercial surrogacy include the Ukraine, Greece, Georgia, and the US states of California, Nevada, Maine, New Hampshire, Illinois, and some others. Explicit laws in these jurisdictions recognize the validity of the surrogacy contract. In these destinations, the Intended Parents rights are set before the baby is born.

In other countries the surrogate is the legal mother (her name appears on the birth certificate) until a specific court process declares otherwise. These countries include Canada, Australia, the United Kingdom, and some other European countries.

In friendly jurisdictions, a parentage decree often can be done within days of the birth. But others may require weeks or months (or sometimes years) to unequivocally define the parental rights. Court orders typically require the cooperation of the surrogate — who must waive her parental rights and agree to the court order. Until the court order is granted, the surrogate has some leeway to change her mind and request parental rights. Agreeing to the court order is fundamental to any Surrogacy Contract, which is a good reason why a Contract is always necessary!

Several other popular surrogacy destinations have no legal framework, and so the rights of the Intended Parents are never assured until a court process takes place when they return home. These are the most risky destinations, and they include Kenya, Cyprus, Mexico, Guatemala and some others.

I hope this is all clear and helfpul,
— Bill