Surrogacy Legal Issues: Can a Surrogate Get Custody?

If you are considering surrogacy, chances are you still want children that are yours, even if you don’t carry them. Surrogacy laws, in general, are difficult to explain, but IVF surrogacy can raise more legal issues. So before you have decided on surrogacy, you will need to learn about:

  • Types of surrogacy and the problems that come with each;
  • How a family law attorney is a necessity in this case; And
  • Specifics on the kind of contract you should get.

Current Situation with Surrogacy

Surrogacy is often considered the most complicated assisted reproductive technology option from a legal standpoint. Because of that, it is crucial for those interested in using a surrogate to retain a lawyer who specializes in it.

Having a child through surrogacy can be a complex and lengthy process, especially in Maryland. However, because there are no explicit surrogacy laws in Maryland, there aren’t many rules that either party has to follow to get it done.

Types of Surrogacy

There are two types of surrogacy. The first is traditional, where the surrogate contractually gives up their biological child. The other type is gestational surrogacy, where the surrogate mother is not related to the child; they carry them.

 

Gestational surrogacy happens through in vitro fertilization, IVF. The legal issues that can arise from IVF alone are significant, but adding another layer like surrogacy can make it even worse.

 

Traditional surrogacy is also legal, but it too gets complicated. The Maryland Attorney General released an opinion on compensated traditional surrogacy arrangements, stating that “surrogacy contracts that involve the payment of a fee to the birth mother are, in most instances, illegal and unenforceable under Maryland law.”

 

Other than fees that cover the surrogate mother’s well-being – doctors’ visits, counseling – it is illegal to pay the mother. Like traditional surrogacy in most states, Maryland surrogacy can be tricky considering the surrogate’s connection with the child.

 

Gestational pregnancies are easier to make sure that the biological parents get to keep their child, but anything involving children, and four prospective parents, gets tricky. That isn’t to say that surrogacy will be a terrible process. But it is something that you should think about, run through all of the possibilities, and get legal representation to write up a contract.

 

How Can a Family Law Attorney Protect Your Rights?

Due to the uninformative nature of Maryland’s reproductive technology laws, you should consult with a reproductive technology attorney before attempting any reproductive process. An attorney can help you:

  • Understand different outcomes and all of the options that you have
  • Negotiate and draft comprehensive surrogacy agreements that protect both the rights of the surrogate and the parent;
  • File a petition for birth order in surrogacy matters such as determining the child’s legal parentage and allowing the intended parents’ names to be placed on the child’s birth certificate.

While many prospective parents use clinics and agencies to make the process easier, these agencies typically do not provide legal services or advice. Instead, a reproductive technology attorney is on your side and will review all of the agency’s proposed contracts and agreements to ensure they are in your best interest.

Surrogacy Contracts

Surrogacy contracts should clearly state the intentions and responsibilities of each party and should emphasize that the surrogate does not intend to seek custody of the child.

The surrogacy contract should include who will pay the medical expenses and what role the surrogate will play in the child’s life. Many surrogacy contracts also state additional fees on top of the base fee.

Maryland surrogacy contracts should always address:

  • Rights and responsibilities of each party
  • Potential risks and liabilities for each party and steps to follow should one occur
  • Surrogate compensation and other financial details, including surrogacy insurance
  • Contact expectations

The contract should leave no room for interpretation in the future. This is where an experienced family lawyer will come in handy to address possibilities you may have never thought of.

Working with an experienced surrogacy attorney in Maryland will ensure that your surrogacy contract addresses all aspects required to start the medical process of surrogacy.

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[CHECKLIST] If you need a family lawyer or domestic legal counsel in Maryland, learn the 8 questions you must ask before retaining.