What Legal Rights Does A Surrogate Mother Have?

Surrogacy is one of the most controversial topics in modern pregnancy technology. Following media coverage of celebrities such as Kim Kardashian, Khloé Kardashian, and Priyanka Chopra having babies via surrogacy in recent years, global interest in the process has piqued.

The legal rights of a surrogate mother vary by state, as there are currently no federal laws in place to dictate the relationship between surrogate mothers, intended parents, and their babies (via Surrogate.com). Several factors can determine what rights a surrogate mother has, including where she lives.

If you are thinking of becoming a surrogate for someone you know, the first thing to understand is that there are two kinds of surrogates. The first is a traditional surrogate, who is artificially inseminated with the father's sperm, or donor sperm (via WebMD). Traditional surrogates provide the egg and are therefore the baby's biological parent. The second kind of surrogate is a gestational surrogate. This process involves eggs and sperm coming from two separate sources to create an embryo, which is then planted in the uterus of a third person, who is not the baby's biological parent. The type of surrogacy process can also affect what rights a surrogate mother has.

What is a surrogate entitled to?

A surrogate's rights are largely dictated by the gestational carrier agreement, which is the contract between the surrogate and the baby's parents (via Conceivabilities). Legal professionals and surrogate agencies always recommend stipulating all the terms in the contract carefully and covering all bases, so each party will know exactly what they're entitled to in any given situation. For example, it's important to be clear about what the course of action will be if the pregnancy results in twins.

As per the terms outlined in the agreement, surrogates are generally entitled to the right to have health insurance provided for them, have access to psychological help throughout the pregnancy, and be informed about all relevant medical procedures. Surrogates are also entitled to receive compensation and reimbursements as stated in the contract. Conceivabilities explains that surrogates can also choose their own medical teams if they experience side effects from the pregnancy.

Though the specific compensation may vary between contracts, surrogates have the right to have all medical and legal services in relation to the pregnancy provided for them, with fees paid for by the intended parents (per Healthline). As a surrogate's legal rights are so dependent on state laws, surrogate agency Creative Family Connections has created a helpful surrogate law map that outlines where in the U.S. compensated surrogacy is widely permitted and where there will be legal barriers that can change the rights of the surrogate or the parents.

What rights does a surrogate not have?

In surrogate-friendly states, surrogates typically don't have parental rights to the baby. The intended parents gain parental rights and a surrogate can't choose to keep the baby (via Hatch Fertility). Complications may arise with traditional surrogates, Southern Surrogacy explains, as some states recognize a traditional surrogate as having parental rights given that they are biologically related to the baby. In this case, parental rights have to be legally transferred after the baby is born. Traditional surrogacy is becoming increasingly rare for this reason.

Depending on the contract, surrogates also don't usually have the right to make choices about pregnancy termination without the consent of the intended parents (via Surrogate.com). There have been notable cases of conflict between intended parents who wish to terminate a pregnancy, often due to the ill health of the embryo, and surrogates who wish to carry to term. Disagreements like this can become extremely upsetting and damaging for both parties, which is why it's crucial to determine in the contract what will happen in the event that an embryo is unhealthy or not developing properly. Surrogates and intended parents should always ensure their views about termination and selective termination are aligned from the beginning.