A surrogate mother gave birth to twin girls for actors Matthew Broderick and Sarah Jessica Parker in Ohio on Monday. The celebrity parents are ready to take the newborns home and leave the birth mother in the Rust Belt. Does the surrogate have any rights now that the children are born?
Not if they used Parker’s eggs. Surrogate mothers who are not genetically related to the child have had little success in obtaining any kind of parental rights. But surrogacy is an enormously complicated and unsettled area of law, and different states take different approaches. In surrogacy-friendly states, like Ohio and California, a judge issues an order, either before or immediately after the delivery, recognizing the genetic parents as the legal guardians, and directs the hospital to do the same. As part of the process, the surrogate normally waives any right to contest custody. In other states, the intended mother may have to go through an adoption procedure. Still, as long as the surrogate is onboard, any state will eventually grant custody to the intended parents. Once legal parenthood is established, the surrogate has no legal relationship to the child—not even visitation rights.
In the event of a renegade surrogate or divorce of the intended parents, things can get very messy. This is where planning is important. If possible, couples should never use the surrogate mother’s egg, as this arrangement strengthens her claim to parental rights. If the intended mother’s eggs aren’t viable, smart couples use a third-party egg donor. Second, choice of state is crucial. Surrogacy is actually a crime in Arizona (although the law has not been enforced), and some states, like North Dakota, don’t recognize surrogacy agreements at all. In these states, if the intended parents divorce and start bickering over custody, the surrogacy contract is worthless, and family-law statutes come into play. Depending on the jurisdiction, courts may then simply presume that the birth mother is the legal mother—and her husband the father—and it’s up to the intended parents to overcome that presumption in a lengthy court battle while the birth mother raises the child.
The surrogacy contract, often around 40 pages, governs much more than just custody. It requires in-depth psychological testing of the mother to make sure she is emotionally prepared to carry out her duties (including giving up the baby) as well as STD tests and other physical exams. Once the pregnancy commences, the contract can dictate many aspects of the surrogate’s life. Drinking, smoking, and risky behaviors like skydiving are invariably prohibited. The contract can also require the surrogate to eat a generically healthy diet, or it can go so far as to mandate an organic-only diet.
Then there are the stickier issues: money and abortion. The intended parents pay all medical expenses if the surrogate’s insurer balks. They also send a monthly check to the surrogate to cover expenses like vitamins and trips to the doctor as well as the agreed-upon compensation. The going rate is between $20,000 and $30,000 spread over the course of the pregnancy. (In the event of a miscarriage, the surrogate usually keeps what she has received by the time of the termination.) The contract will also dictate whether an abortion is in order should testing reveal certain problems with the fetus. Similarly, the mother may be required to have an abortion in the event of multiple fetuses—a common event in surrogacy. But the contract may be worthless paper in this sensitive area. It is highly unlikely that a court would force a woman to have an abortion, and there is no case law on what happens if the surrogate refuses to carry the baby to term even though the contract requires it.
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Explainer thanks Theresa Erickson of Erickson Law and Thomas Pinkerton of the National Fertility Law Center.