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SURROGACY LAW IN NORTH CAROLINA
Author: W. DAVID THURMAN
I. OVERVIEWNorth Carolina does not have any definitive law which directly addresses surrogacy. Neither the General Assembly nor North Carolina Appellate Courts have legislated or ruled on the issue.
In Chapter 49A of the North Carolina General Statutes, the General Assembly did address the issue of artificial insemination. Section 49A-1 is entitled "Status of child born as a result of artificial insemination" and reads:
Any child or children born as the result of heterologous artificial insemination shall be considered at law in all respects the same as a naturally conceived legitimate child of the husband and wife requesting and consenting in writing to the use of such technique.
While this statute covers artificial insemination by a husband and wife, it does not address gestational surrogacy, artificial insemination surrogacy, or surrogacy contracts.
The current statutory and case law in the State of North Carolina contemplates traditional family building options. This fact has resulted in awkward application of this traditional law in surrogacy situations. This awkwardness is perhaps best illustrated by the infamous "TURKEY BASTER" cases in the State of North Carolina.
A few years ago, newspapers across the State of North Carolina carried the story of two sisters who were married - one of whom was infertile. The fertile sister agreed to serve as a surrogate for the infertile sister. The husband of the infertile sister donated his sperm, which were placed into a turkey baster. The fertile sister used the turkey baster to inseminate herself and then "stood on her head for two hours".
The fertile sister conceived from this unique insemination technique, and delivered a child at term.
As a result of this publicity, a number of other similarly infertile couples in North Carolina decided that the purchase of a turkey baster at the local supermarket for $4.95 was a much more attractive option than the expense of thousands of dollars on more conventional medical, albeit perhaps more sanitary, conception techniques. This firm represented (post facto) one couple whose married friend successfully used the turkey baster method on their behalf.
The state adoption unit, in conjunction with the North Carolina Attorney General's Office, applied the existing traditional law and determined that the turkey baster situations would be handled as simple third party adoptions. For this reason, the adoptions had to be filed under the North Carolina adoption statute as if the surrogate mother and her husband were the natural parents of the child.
Since stepparent adoptions were treated much more beneficially under the North Carolina adoption statute than third party adoptions, this firm submitted affidavits on behalf of its client stating that the adopting father was the natural father of the child. Thus, his name should appear on the birth certificate and the adoption should be treated as stepparent adoption. This approach was rejected by the authorities due to the fact that the surrogate mother was married and, under North Carolina law, a rebuttable presumption arises that any child conceived during marriage is the child of her husband. Happily, the adoption was eventually finalized.
North Carolina's traditional approach includes the following:
II. PATERNITY
North Carolina common law presumes that a delivering mother's husband (either at the time of conception or at the time of the delivery of the child) is the father of the child. See Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972). This presumption may be rebutted where there is clear proof to the contrary.
In gestational surrogacy where the surrogate mother is married, the law would presume, without dispositive court proceeding, that the surrogate mother's husband was the father of the child.
The mother of an illegitimate child may bring an action to establish paternity. (N.C.G.S. 49-14). Establishment of paternity shall be beyond a reasonable doubt, but does not have the effect of legitimation.
III. MATERNITY
North Carolina law considers the delivering female to be the mother of the child.
IV. LEGITIMACY
A father of a child sired out of wedlock may render the child legitimate by petitioning Superior Court (N.C.G.S. 49-10) or by a subsequent marriage to the mother of the child. (N.C.G.S. 49-12). Legitimation of the child establishes lawful parental privileges, rights, and obligations, and entitles the child to inherit from the father, as if born in lawful wedlock. (N.C.G.S. 49-11).
In gestational surrogacy where the surrogate mother is unmarried, the law would, without dispositive court proceeding, consider the child to be born out of wedlock.
V. ARTIFICIAL INSEMINATION
Any child born as the result of heterologous artificial insemination within wedlock or within the usual period of gestationthereafter is presumed legitimate if both spouses have consented in writing to the use of artificial insemination. (N.C.G.S. 49A-1). Presumably, by the use of the word "heterologous", this statute would apply to inseminations using genetic material supplied by third parties implanted in the wife. The statute does not mention surrogate insemination.
VI. ADOPTION
While many natural parents in a surrogacy situation do not wish to adopt their own genetic offspring, and while adoption in North Carolina subjects the adopting parents to a preplacement and postplacement review (a/k/a home study) by the Department of Social Services or other licensed agency, it is nonetheless available as a means to complete a surrogacy situation in North Carolina.
Chapter 48 of the North Carolina General Statutes controls adoption. Each form of adoption is dealt with separately in the statute, to wit: independent placement adoptions, Department of Social Services and licensed agency adoptions, stepparent adoptions, and adult adoptions.
As stated previously in the overview, surrogacy situations without agency assistance are treated as third party independent private adoptions. It is possible, however, that a genetic father's rights could be established through a paternity hearing, and then a stepparent adoption occur.
In third party private independent adoption, a consent form needs to be obtained from the surrogate mother, and, with a few exceptions, the putative father. (N.C.G.S. 48-3-601ff.). For a child less than three months of age, the consenting parent is allowed to revoke a consent for a period of twenty-one (21) days after proper execution of the consent form. (N.C.G.S. 48-3-608).
Hearing or disposition on an adoption petition should occur no later than six (6) months after the adoption petition is filed. (N.C.G.S. 48-3-603).
VII. CUSTODY AND CONTROL
The father of an illegitimate child may seek custody of the child upon and after the establishment of paternity. (N.C.G.S. 49-15). Court action would thus be necessary for a biological father to seek custody in a surrogate situation. (Any parent who willfully neglects or refuses to provide adequate support for and maintain an illegitimate child is guilty of a misdemeanor in North Carolina. (N.C.G.S. 49-2).
VIII. UNLAWFUL ADVERTISEMENT/UNLAWFUL INDUCEMENT
North Carolina's adoption code prohibits advertisement in any periodical or newspaper, or by radio, television, or other public medium, that any person will place or accept a child for adoption, unless that person is an agency or an adoption facilitator. (N.C.G.S. 48-10-101). Violation of this advertisement prohibition is a crime.
Except as specifically enumerated in N.C.G.S. 48-10-103, the North Carolina adoption statute also prohibits payment of money or anything of value, directly or indirectly, for placement, consent, or relinquishment for adoption. (N.C.G.S. 48-10-102). Again, theoffer or making of such unlawful payments is a crime.
Lawful payments listed in 48-10-103 are as follows:
(1) Services of an agency in connection with an adoption;
(2) Medical, hospital, nursing, pharmaceutical,traveling, or other similar expenses incurred by a mother or her child incident to the pregnancy and birth or any illness of the adoptee;
(3) Counseling services for a parent or the adoptee that are directly related to the adoption and are provided by a licensed psychiatrist, psychologist, marital and family therapist, registered practicingcounselor, certified social worker, fee-based practicing pastoral counselor or other licensed professional counselor, or an employee of an agency;
(4) Ordinary living expenses of a mother during the pregnancy and for no more than six weeks after the birth;
(5) Expenses incurred in ascertaining the information required under G.S. 48-3-205 about an adoptee and the adoptee's biological family;
(6) Legal services, court costs, and traveling orother administrative expenses connected with an adoption, including any legal service connected with the adoption performed for a parent who consents to the adoption of a minor or relinquishes the minor to an agency; and
(7) Preparation of the preplacement assessment and the report to the court.
Lawful payments authorized under the adoption statute may not be contingent on placement, relinquishment, consent, or cooperation in completion of the adoption. Furthermore, a report to the Court of any lawful payments is required in an adoption proceeding. (N.C.G.S 48-2-602).
These provisions in the North Carolina adoption statute are probably broad enough to apply to surrogacy situations. Any advertisement or payment made in the context of a surrogacy situation should comply with these statutes. Under the prior North Carolina adoption statue, violation of these provisions have resulted in nullification of adoption decrees and dismissal of the adoption proceeding. In re: P.E.P., 329 N.C. 692, 407 S.E.2d 505 (1991).
IX. CONTRACTS
As a general proposition, parties can privately agree to engage in, or undertake actions, except to the extent that the purpose of the contract is to conduct an immoral or illegal action, or to the extent that such a contract would contravene public policy. It is uncertain whether a surrogacy contract in North Carolina would be enforceable, and thus surrogacy contracts have dubious enforceability.
X. CONCLUSION
Surrogacy is problematic, but, if the parties all consent to the procedure without wavering, the desired result may be achieved in North Carolina.
NOTE: THE OBSERVATIONS ABOVE ARE RESTRICTED SOLELY TO THE STATE OF NORTH CAROLINA AS OF THE DATE WRITTEN. THE LISTING IS BY NO MEANS EXHAUSTIVE, NOR TAILORED TO THE PARTICULAR FACTS OF ANY GIVEN SITUATION.
ANY REVIEWER OR POTENTIAL USER OF THIS INFORMATION IS ACTIVELY ENCOURAGED TO SEEK COMPETENT LEGAL COUNSEL WHO IS LICENSED TO PRACTICE IN THE REVIEWER'S STATE OF RESIDENCE. NO PERSON IS AUTHORIZED TO RELY UPON THE MATTER OR OPINION SET FORTH IN THIS ARTICLE. THE AUTHOR IS NOT QUALIFIED TO COMMENT ON THE LAW OF ANY STATE OTHER THAN NORTH CAROLINA.
BY MAKING THIS INFORMATION AVAILABLE, THE AUTHOR IS NOT ESTABLISHING ANY LAWYER/CLIENT RELATIONSHIP WITH THE REVIEWER.
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Marietta, GAThe information contained in the website may not be published, broadcast, rewritten or otherwise distributed without the prior written authority of The American Surrogacy Center, Inc. If you would like to include this information on your website, you may link to the page directly on our site.
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