Surrogate motherhood can be a fulfilling and joyful responsibility for women embarking this journey, and it has certainly helped many couples start loving families. But if you’re considering taking part in a surrogacy program, you might be wondering, what happens if the surrogate changes her mind? What happens if she decides during pregnancy that she wants to keep the baby?
Questions like these ones are why having someone else give birth to your baby can get complicated. The question, “Can a surrogate keep the baby?” doesn’t always have a clear-cut answer, but let’s break it down.
Parental Rights in Gestational Surrogacy
The most commonly used form of surrogacy nowadays tends to be gestational surrogacy. Gestational surrogacy is an in vitro fertilization (IVF) form of surrogacy in which the surrogate is implanted with an embryo created from the egg and sperm of the parents or donors. In this case, the baby has no genetic link to the surrogate, meaning that the surrogate has no legal right to the baby.
This form of surrogacy protects the intended parents. As a surrogate mother, you would probably have little to no chance of keeping the baby, despite carrying them to term. Most experts recommend this form of the practice over others.
Parental Rights in Traditional Surrogacy
Here’s where we start to enter a gray area. Unlike gestational surrogacy, traditional surrogacy allows for the use of the surrogate mother’s egg to create the embryo. The procedure has led to a few legal battles in the past between surrogates and intended parents, and it continues to cause controversy due to its complexity.
Traditional surrogacy, however, is now far less common than the other, more protected form of surrogacy. In fact, some states in the U.S. have even made it illegal because of the issues surrounding it.
Protective Surrogate Laws
Officials have put laws in place to protect both the surrogate and the intended parents involved in this type of program. Surrogate organizations practice care and diligence early on in the process, pairing the surrogate and parents together on their own. Before the participants even learn about one another or have the chance to meet, a law firm must conduct a legal review of the surrogate arrangement.
Before a woman can become a surrogate, the prospective surrogate and the parents must sign a legal agreement. The agreement is a contract that clarifies any custody issues to prevent a conflict or to solve a conflict in the case that one occurs. Both the surrogate and the parents should have a trustworthy, experienced third party reproductive attorney to advise and protect them if necessary.
Surrogacy can be daunting due to its legal and medical complexities, but it is easier to navigate when you put the right professionals behind you. Contact Western Fertility Institute now to learn more about the surrogacy program and if this is the right option for you.
This content was medically reviewed by the Western Fertility Institute medical team on July 15, 2019.