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VI. SELECTION OF SURROGATE Physiological, psychiatric, psychological, and emotional considerations are paramount in selecting a surrogate.
The medical practitioners must be convinced that the surrogate is capable of carrying the child, and the psychiatric/psychological/counseling professionals must be convinced that the surrogate is appropriately motivated and has the qualities essential to becoming a surrogate.
Only then must one consider legal ramifications. They include:
A. How to Locate Surrogate
Does the law of the particular state proscribe or prohibit surrogacy, and hence, should a surrogate be sought who is a resident of a particular state, or should the birth be arranged in a particular state? The infertile couple must consult with legal counsel on these issues.
How does an infertile couple "link up" with potential surrogates? Do the laws of a particular state require an agency or a lawyer to make these contacts or inquiries (either privately or through advertising)? Where the surrogate will have a genetic link to the child to be born (such as through artificial insemination surrogacy, rather than gestational surrogacy), there may ultimately be a step-parent adoption, where the genetic mother (the surrogate) is replaced with the wife of the sperm donor. In these instances, the adoption laws of the particular state may well have to be consulted as they relate to locating pregnant "mothers" willing to place their child for adoption.
B. Married Surrogates
Traditionally, childbirth occurred to married couples, and hence legitimacy of the child was generally presumed where the parents were married at either at the time of conception or time of birth.
However, this was not always the case, and there are often provisions (generally requiring some form of court supervision such as filing of affidavits or conducting of judicial hearings) to determine paternity in the event the father of the child is not the husband of the mother.
As the husband of the surrogate is a necessary party to these procedures (as many states presume him to be the genetic father of the child), the surrogate's husband must be in full accord and endorse the surrogacy. Otherwise, a contested legal proceeding could well ensue.
The same considerations would apply to an unmarried surrogate with a semi-permanent boyfriend or "significant other". Some states might allow such an individual to acquire the rights of a common law husband.
In any event, the surrogate's husband or significant other would have to agree to sexual abstention during the periods of fertilization or embryo transfer. These men are also necessarily subject to testing for infectious disease to the extent these diseases could impact the pregnancy or delivery of the child.
C. Compassionate Versus Compensated Surrogate
The availability of compensation to the surrogate, along with its extent, must be seriously considered. The law in this area developed in the adoption context, where "baby-selling" by pregnant women is often proscribed. In many states it is a felony, punishable by significant fines and multiple years in prison.
The matter is highly regulated in the adoption context, generally requiring disclosures of amounts paid (and their purpose) in formal adoption proceedings, and the allowable amounts are often restricted to reimbursement of medical, legal, and possibly living costs. Adoption agencies often have greater leeway in allowed expenses to be reimbursed to the mother. Compensation may not be allowed for lost wages due to illness during the pregnancy. The particular state's laws must be consulted on all surrogate compensation issues.
Where surrogacy is allowed in a particular state, the statute should be scrutinized as to allowable elements of compensation or reimbursement. Where it is not, the infertile couple (and their legal counsel), along with the surrogate (and her legal counsel) must weigh the relative risks in determining whether these laws would apply in the surrogacy context. They most probably do in artificial insemination surrogacies, where a step-parent adoption would follow the birth of the child (as the infertile wife replaces the surrogate genetic mother). Hence, compensation is probably limited.
In the gestational surrogacy context, compensation might be more liberal, based on the following notions:
1. The fact that the pregnancy was deliberately arranged, consciously undertaken, and hopefully, the topic of a signed contract between the parties, where all of these matters were agreed upon in advance (vis a vis the generally unplanned pregnancies in the adoption context);
2. The fact that the pregnant surrogate has no genetic ties to a child she is carrying; and
3. The support obligations which a father has to a child in an "out of wedlock" situation. In most states, if the father is not married to the surrogate, he nonetheless has a support obligation to the child when born, often through the age of majority. In some states, the father also has a prenatal support obligation to the child, as the law recognizes that it is highly desirable to arrange for the providing of adequate prenatal care to the yet born child.
D. Where Child is to be Born
Among the obvious issues is the desire of the infertile couple to monitor the pregnancy (and whether that is possible or practical in a distant state), and another element involves the state of the child's birth and its jurisdiction to issue birth certificates. Even where a couple is traveling through another state, if the child is born in that state, that state has a sufficient connection or nexus to justify its issuance of the child's birth certificate.
The laws of that state would, therefore, apply concerning which individuals are listed as father or mother on the birth certificate, as well as what procedures must be undertaken to overcome usual presumptions such as the listing of the surrogate's husband as father of the child. While some states in the past allowed an unmarried woman delivering the child to name the child's father on the birth certificate, that is often not an available option currently.
VII. NECESSITY OF A CONTRACT
Author: Mark A. Johnson
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Marietta, GA
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