SURROGACY IN NEW HAMPSHIRE
Author: Michael L. Laws, Esq.
Imagine that a married couple living here in New Hampshire has decided they want children. One of the spouses, unfortunately, is infertile, or perhaps the wife for a variety of possible reasons is unable to carry a fetus to full term. It is estimated that fully 15 percent of Americans, meaning at least 10 million individuals, have issues dealing with infertility. Thus, the New Hampshire couple are not alone in their predicament. The traditional option the couple has available to them is of course adoption. However, there is scarcity of adoptable infants that makes this option a difficult one. Happily, they can also choose from a host of alternative reproductive methods that are now commonly available.
For example, the wife of the infertile husband can choose to be artificially impregnated with sperm donated by an anonymous donor whose genetic characteristics the couple finds acceptable. Estimates are that in the 12 months between 1986 and 1987 172,000 women choose artificial insemination as a means of becoming pregnant, resulting in approximately 35,000 births. Less than 5 percent of the women choosing artificial insemination were unmarried.
In this scenario, the infertile husband is legally presumed to be the father of the child, despite his lack of genetic connection between the two, and as such has full rights and responsibilities of parenthood. Conversely, the sperm donor, according to law, would have to support the resulting child only if he signs an agreement to that effect. Furthermore, before becoming an actual donor he must have taken and passed an extensive medical evaluation.
The Surrogate Agreement
Issues of parenthood are somewhat more complicated in cases of an infertile woman who chooses to enter with her husband into an agreement with a surrogate to bear their child. Depending upon circumstances, the surrogate agrees to be impregnated using either the intended father's sperm or the couple's fertilized embryo, fertilized most likely in vitro. Technology now is such, however, that the surrogate birth mother may serve merely as the incubator, with absolutely no genetic similarity between her and the child she bears to term.
Regardless of the methods used, there are two maternal players: the surrogate mother who agrees to fulfill the biological function of bearing a child for the couple and whose relationship with the child ends at birth; and the intending mother, who may if possible donate her fertilized egg to the surrogate, and who later fulfills the role as parent in rearing the child. The problem, in essence, is that our laws have always considered the woman who gives birth to a child as that child's mother, with all the attendant rights and obligations that come with that status.
In an attempt to catch up, so to speak, with new medical technology, New Hampshire has passed a law governing surrogacy. This law, RSA 168-B, also attempts to control a situation that is rife with potential for exploitation and abuse. Surrogacy, after all, deals with real humans and not barnyard animals. The surrogate mother, the intended parents, and the resulting child, are all potentially vulnerable to victimization.
A surrogate agreement, therefore, is not one that is entered into lightly. There are many things to be considered and all of the decisions that the intending parents make are an investment in the conception process, including most importantly their choice of surrogate. Therefore, it would be courting disaster if the couple did not enlist the services of an attorney to draft the contract, spelling out the specific rights of the parties. The surrogate should also have an attorney, paid for by the intended parents, to ensure that her rights also are addressed in the agreement.
New Hampshire surrogacy law does not presume that conflicts will develop between the parties, but it does anticipate the possibility. Therefore, it is very specific in its requirements. For example, all parties to the surrogate contract must be at least 21 years old. Furthermore, the sperm donor, the intended mother, and the surrogate must be medically evaluated. Not only must the surrogate be found able to bear a healthy child, but the intended mother must be found physically incapable of bearing of child. The parties must also receive genetic counseling if the surrogate is 35 years or older. Also, the surrogate must have a documented history of at least one successful pregnancy, including a viable delivery.
Moreover, a nonmedical evaluation must be performed on each party by a psychiatrist, psychologist, pastoral counselor or social worker in order to determine the individual's "suitability" to be a parent, including that person's ability to handle the inherent risks of the contract. The individual performing this evaluation must be licensed or otherwise certified by the state. A homestudy, performed by the Division of Children, Youth, and Families or a licensed agency, also must be conducted of each party's home to determine if that party is capable of providing for a child.
Assuming the surrogate is married, one party who should be kept in mind is her husband. It should be stipulated in the contract that he is not the legal father of the child, since otherwise he would be considered the father of any child his wife gives birth to. New Hampshire law, in fact, requires the surrogate's husband to certify that he received counseling for this matter. He may also be required to declare that he is prepared to accept legal responsibility for the child, depending upon circumstances.
Finally, the agreement itself must be submitted in the form of a petition to Probate Court, where a hearing is then scheduled within 90 days after the filing. At that time, the probate judge will then validate the surrogacy agreement after meeting with the parties, reviewing the agreement's terms and conditions, verifying that all the required counseling and appropriate evaluations have occurred and, finally, determining that everything ultimately will be in the best interest of the resulting child.
Duties and Responsibilities
As the the child's birth mother the surrogate has distinct rights and responsbilities that automatically come with that status. For example, during the pregnancy the surrogate has sole responsibility for all medical decisions affecting the fetus, including the decision to abort. The intended parents have absolutely no say in that matter. Furthermore, because of her rights she can not simply turn her child over to the biological father and intending mother without first giving up her rights. Assuming a valid surrogacy contract, those rights are automatically terminated 72 hours after the child's birth. She can prevent this from happening only by declaring her intent to preserve them before the 72 hours has expired. The only exception would be if the surrogate was physically unable to communicate her intent.
The surrogacy law also sets out in detail other responsibilities. For example, the child's parents, whomever that ultimately may be, have a duty to support the child after birth. However, the surrogate's support duty ceases the moment her parental rights are terminated. If she decides to keep the child after its birth by asserting her parental rights, the intended father is still on the hook for support obligations. New Hampshire courts have the power to enforce support requirements as necessary.
If a fee has been negotiated between the intended parties and the surrogate, the fee is limited by law to pregnancy-related expenses, including medical expenses, lost wages (including the period of post-partum recovery), insurance costs, reasonable attorney's fees and court costs, and counseling fees. Surrogacy brokers are not allowed by law. In this way, and by limiting any fee arrangement, the law attempts to keep the surrogacy agreement one motivated primarily by consideration and generosity of spirit, and not a deal between horse traders. Fortunately, it usually is successful.
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Kennesaw, GA
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