fSurrogacy brings both hope and happiness, but a common fear is that a surrogate may decide to keep the baby. When this happens, a properly written surrogacy agreement usually protects the intended parents. The final outcome depends on specific factors.
Legal protections for intended parents
In general, if a surrogate attempts to keep the baby, intended parents can ask the court to enforce the contract. Judges may order custody transferred based on the pre-birth order, which establishes legal parentage before the birth. Intended parents might also pursue breach of contract claims to recover expenses.
Courts, however, cannot require a surrogate to undergo medical procedures or end a pregnancy. Decisions involving her body remain her own and are protected under law.
Only the surrogate has the right to reconsider the arrangement and that right applies only during the limited period allowed by law. Intended parents cannot later decide to step away or ask the surrogate to keep the baby. Once the agreement is in place, it reflects their full commitment to becoming the child’s parents.
Gestational vs. traditional surrogacy
The type of surrogacy may also affect what happens if a surrogate changes her mind. During a gestational surrogacy, the embryo is made with the indented parent’s or donor’s DNA. This means the surrogate mother is not genetically connected to the baby, strengthening the indented parents legal position.
Traditional surrogacies can be a bit trickier. The surrogate uses her own egg, creating a genetic tie to the child. This connection can make legal proceedings and parental rights more difficult to resolve.
In California, courts may grant pre-birth parentage orders, but judges often move carefully when the surrogate is also the baby’s biological mother. In many cases, parental rights are not finalized until after the birth.
New York takes a different path. The state’s Child-Parent Security Act (CPSA) applies only to gestational surrogacy where the surrogate has no genetic link. Traditional surrogacy is allowed only if unpaid and the surrogate must consent to adoption when the intended parent is not biologically related.
Oregon’s approach is more flexible. Courts often issue pre-birth orders when one intended parent is genetically related to the child. When no genetic link exists, a post-birth adoption usually establishes full parental rights.
Why a surrogate might reconsider
Several emotional and psychological factors can cause a surrogate to change her mind, such as:
- Emotional attachment: Carrying a baby for nine months can create a strong bond, even when the surrogate understands the baby is not genetically hers.
- Life changes: Events such as a breakup, financial stress or health problems can shift how a surrogate feels about the pregnancy.
- Hormonal or postpartum effects: The physical and emotional changes that come with pregnancy and childbirth can affect decision-making.
It is worth noting that these cases are uncommon. Most surrogacy programs use detailed psychological screening and counseling to address possible concerns before the process begins.
Building a strong foundation for a safe surrogacy journey
States like California, New York and Oregon each have their own approach to surrogacy. In conjunction with a clear and legally enforceable agreement, these laws outline parental rights and guide intended parents through the process.
Beginning the journey with experienced professionals can also make a difference. Skilled lawyers and trusted agencies can help meet legal requirements, support screening and counseling and keep expectations clear from the start.