Can a Surrogate Keep the Baby?
Surrogacy, the practice whereby a woman (the surrogate) carries a pregnancy for another individual or couple (the intended parents), is an act of selflessness that shows some of the most beautiful aspects of humanity.
Being such an important (and yes, costly) family-building tool, however, it’s no wonder one of the initial questions or fears an intended parent has is if a surrogate can keep the baby.
As a person with free will, it is certainly within the realm of possibility that a surrogate tries to keep the baby, as a handful of surrogates throughout modern history have attempted.
That said, as long as the intended parents work with surrogacy professionals who properly screen their surrogates and follow several key steps in the surrogacy process, the odds of a surrogate even attempting this are minuscule, and the chance of them succeeding is zero.
In over a decade of helping parents find surrogates and managing their journeys, Surrogate Step has yet to have a single surrogate even mention the desire to keep the baby.
Still, the fear of a surrogate keeping the baby is warranted and worth a deeper look. This article will discuss why intended parents fear their surrogate keeping the baby, whether or not a properly screened surrogate would even want to keep the baby, how legal parentage is established, and critical steps any intended parent can take to ensure the surrogate cannot keep their baby.
Why are Intended Parents Worried About Surrogates Keeping the Baby?
When you read other articles on whether a surrogate can keep the baby, there is usually a blatant dismissal of the intended parent’s fears.
Sure, if surrogates are adequately screened and guidelines are followed, there is little to nothing to worry about. However, if you know the legal case history of surrogacy, you’ll understand just how bad things can go and understand why many intended parents ask if a surrogate can keep the baby.
For example, in 1986, Melissa Stern (aka “Baby M”) was born in the United States by a traditional surrogate (a surrogate that is the biological mother of the child) named Mary Whitehead. Mary refused to relinquish custody, kidnapped, and ran away to another state with Baby M. While the Sterns (the intended parents) were finally able to secure parental rights, they endured almost two years of legal battles to do so, including the Supreme Court of New Jersey invalidating their surrogate contract and temporarily restoring Whitehead’s parental rights.
In 1990, another similar situation occurred in California, with a Gestational Carrer/Surrogate named Anna Johnson. When Anna refused to give up custody, the intended parents sued Anna. Fortunately, the Supreme Court of California upheld the intended parent’s parental rights.
But things haven’t always turned out positively for the intended parents. In 2009, a couple made an informal agreement with a surrogate, who later decided to keep the baby. The intended parents filed a lawsuit, but the judge determined “there is a clear attachment between mother and daughter . . . to remove her from her mother’s care would cause a measure of harm” and awarded the surrogate custody.
While these cases demonstrate there is a reason to be concerned with a surrogate keeping the baby, as long as the surrogacy takes place in a surrogate-friendly state, the court has sided with the intended parents.
What’s more, the U.S. Supreme Court has denied requests to hear multiple surrogate cases, effectively upholding existing state laws and protecting the rights of intended parents who expand their families through surrogacy with the proper protections of a gestational carrier agreement.
For this reason, it’s essential to work with a reputable surrogate agency that rigorously screens their surrogates, understands the laws surrounding surrogacy, and understands the importance of setting up a gestational carrier agreement.
Would a properly screened gestational surrogate want to keep the baby?
While infamous cases of surrogates attempting to keep the baby are quite scary for any intended parent, the truth is that as long as you work with a reputable agency or reproductive attorney, there is little to worry about.
That’s because when working with a reputable licensed agency like Surrogate Steps, you will be matched with a gestational surrogate that has been rigorously screened.
This screening includes numerous interviews, background and medical record checks, a home study, and rigorous psychosocial evaluations to ensure that they have children (and are done growing their own families), are mature, understand the nature of the surrogacy arrangement, have a genuine and unwavering desire to help others have a child and more.
All women who pass through this rigorous screening and are available to match with intended parents have demonstrated time and time again that they in no way want to add to their own family and have a true passion for helping another person(s) have the baby of their dreams.
Another essential factor to consider in this question of whether or not a surrogate would want to keep the baby is what type of surrogate they are and, thus, their biological connection to the child they carry. Traditional surrogates are the biological mother of the child, whereas gestational surrogates are not.
All surrogates at Surrogate Steps are gestational surrogates. That means they are not the biological mother of the child they carry and thus do not hold the same strong genetic connection to the child they deliver.
Given these facts, it would be extraordinarily rare that a surrogate found through a professional agency would even want to keep the surrogate baby.
Through the hundreds upon hundreds of surrogacy arrangements handled at Surrogate Steps since 2013, not a single surrogate has expressed even the faintest desire to keep the baby.
Despite knowing the probability of a well-screened surrogate trying to take the baby is infinitesimally small, most states uphold surrogate agreements and have formal processes that establish full parental rights for the intended parents.
Legal Processes That Establish Intended Parents as Legal Parents
There are no federal laws surrounding surrogacy. As such, surrogacy laws differ from state to state, which means there are numerous avenues an intended parent might travel to establish parental rights.
Regardless of the exact details required by each state, most surrogacy arrangements establish parental rights through a pre or post-birth order with the supporting gestational carrier agreement.
Gestational Carrier Agreement
The gestational carrier agreement is a legal and binding contract negotiated with the legal representation of each party and signed by the intended parents and surrogate before the embryo transfer.
It outlines each party’s intentions, rights, and obligations and ensures they understand what they are entering into and their responsibility to the other party.
As seen in the gestational carrier agreement excerpt from NPR below, all gestational carrier agreements should address necessary parental rights and custody issues. The gestational carrier agreement typically states that the intended parents have legal custody of the child from birth and that the surrogate and their partner will cooperate with any process required to make the intended parents the legal guardians.
The agreement also outlines specific issues such as control over medical decisions during the pregnancy, payment of medical bills, intended parents’ presence during doctor’s visits and at the delivery, gestational carrier’s compensation and expenses, and more.
While it is true that the details of the gestational carrier agreement may not need to be reviewed after its signing, it provides legal backing for securing legal parentage and more in the eyes of the court.
A pre-birth order is a legal contract that instructs the hospital where the child is born to place the intended parent’s names on the original birth certificate and allows them to make medical decisions for the child the moment they are born.
Securing pre-birth orders generally requires paperwork from the fertility clinic at which the embryo transfer took place, copies of the gestational carrier agreement, and signed paperwork from the surrogate (and their partner) relinquishing legal rights to the child upon delivery.
Typically, this documentation is prepared during the second trimester and filed around six to seven months to the courts in the state in which the surrogate lives and is giving birth.
If the pre-birth order is submitted and processed as expected, the intended parents will be granted legal custody of their child from birth.
The state in which your surrogate resides plays a vital role in your ability to obtain a pre-birth order. That said, there is a workaround in some cases if the surrogate’s home state does not allow pre-birth orders. In cases where the intended parents live in or had an embryo transfer in a state that allows pre-birth orders, then one may be obtained in that state and then domesticated in the surrogate’s home state.
Regardless of whether or not a pre-birth order is obtained, the gestational carrier agreement should state that the intended parents have legal custody of the child from birth and that the surrogate and their partner will cooperate with any process required to make the intended parents the legal guardians.
A post-birth order is similar to its pre-birth counterpart, except it is obtained after the birth. That is, it establishes the intended parent(s) as the child’s only legal parent(s) and orders them to be placed on the child’s birth certificate.
A post-birth order is usually issued in a court hearing held shortly after birth, mainly as a formality, given the parties should agree on the child’s legal parents.
While there is a gap in time between the birth and legal parentage being established in the case of a post-birth order, the intended parents still take custody of the child and can make all the medical decisions for the baby by executing a health care power of attorney.
In the case that one of the intended parents is not the biological parent of the child, stepparent adoption is often done in conjunction with the post-birth order.
While a pre-birth order certainly has advantages, the difference between a pre and post-birth order often seems more significant than it truly is.
Yes, having the legal proceedings settled before birth can provide peace of mind, but the orders don’t go into effect until the child is born in either situation, and the gestational carrier agreement and other documents provide much of the legal protection and rights. For this reason, a surrogate living in a post-birth state should not warrant an intended parent from choosing them if they are their preferred candidate in other regards.
In the case that one or both intended parents are not the biological parents of the child, a stepparent or full adoption may need to take place to officially recognize the intended parents as the legal guardians of the surrogate baby.
Stepparent & second-parent Adoption
A stepparent adoption is required when one of the intended parents is the biological parent of the child, but the other is not (in other words, donor egg OR sperm was used).
In some states, same-sex couples who are not married need to complete a second-parent adoption instead of a stepparent adoption.
Depending on your state, it is possible the intended parents have to go through a full adoption process following the birth of their child if neither intended parent is genetically related to the surrogate baby.
Of course, should you be using embryos that neither IP is the genetic parent of, your reproductive counsel or agency should be able to guide you to a surrogate in a state where a legal adoption is not necessary.
Does your surrogate’s home state impact their ability to keep the baby?
As hinted at throughout this article, the surrogate’s home state is important when working with a surrogate.
That’s because some states, like Nebraska, Michigan, and Louisiana, do not uphold gestational carrier contracts and even criminalize paid surrogacy.
That means, should a surrogate decide they want to keep the baby, there would be no legal recourse for the intended parents. Not only that, the intended parents could face civil and criminal charges.
Other states, like South Carolina, allow surrogacy in some, but not all, cases. In South Carolina, this primarily depends on the intended parent’s marital status and sexual preferences (hetero vs. homosexual).
Because there are no unified federal laws and the state laws vary so widely, intended parents must work with a reputable agency and a skilled reproductive attorney who can guide them through finding a qualified surrogate in a state that will protect the intended parent’s parental rights.
Importantly, Surrogate Steps was founded and directed by Yifat Shaltiel, a renowned reproductive and surrogacy attorney who has a deep knowledge of surrogacy legal matters to ensure your parental rights are secured.
Does the Type of Surrogate Matter?
Traditional surrogates are the biological mother of the child they carry.
Gestational carriers (aka gestational surrogates) are NOT the biological mother of the child they carry.
As you can imagine, the strong genetic connection between the traditional surrogate and the baby adds to the complexity of establishing parental rights.
In uncontested cases, once the child is born to a traditional surrogate, the surrogate simply terminates her parental rights and the intended parents become the legal parents.
In contested cases, a problem arises if the traditional surrogate decides she wants to raise the child.
The Bottom Line: Key Steps to Ensure Your Surrogate Can’t Keep The Baby
As history has shown, the fear of a surrogate keeping the baby is not unwarranted with many surrogates attempting to keep the baby.
Fortunately, as long as the surrogate is rigorously screened and lives in a surrogate-friendly state and there is a gestational carrier agreement in place, there is little, if anything, to worry about.
Here at Surrogate Steps, we have assisted with hundreds of surrogacies since 2013 and haven’t had a single surrogate attempt or even mention the desire to keep the baby.
If you need help finding a surrogate, writing your gestational carrier agreement, or otherwise looking for a team of reputable surrogate professionals to help you along this often stressful journey, we encourage you to contact us or request a free intended parent consultation.