Why Parents Should Take Legal Advice Before Considering Surrogacy

It can come as a considerable shock to learn that, as a couple, you're not able to conceive a baby naturally. It's unfortunate that some married couples find themselves in this situation, but there's always the option to consider a surrogate instead. Before moving ahead, it's crucial to understand how the law works so that everything proceeds carefully and there are no more shocks in the future. What do you need to be aware of?

Determining Status

Much will depend on the actual status of the surrogates in relation to how the law recognizes who the actual mother is. It's a very complicated area and varies from state to state, with case law that can hardly be described as "settled." In fact, some legislation has only been in place for less than a decade in certain states. In many instances, the law will consider the birth parent to be the "legal" entity and not either of the two people who arranged for the surrogacy in the first place. The situation can be even more complicated in an assisted reproduction birth, especially if the two individuals are in a same-sex relationship.

The Risk of Informality

It's very important to set up a proper legal framework before thinking about surrogacy. This is the case even when one of the parties involved may be a member of the larger family. Even though everyone may agree verbally and in advance about how the entire process will unfold, it's crucial to take nothing for granted and to insist on setting up a legal framework at the outset.

It's not unheard of for a surrogate mother to develop close ties to the child once it is born, and this may lead to an argument between biological parents and the surrogate with regard to how the baby is cared for. This places everyone in an impossible situation if there is no legal agreement. Remember that a court of law will not recognise any informal agreement, verbal or otherwise, and this may result in a lengthy court case while the judges decide the fate of each party.

Talking with the Experts

As you probably know, commercial surrogacy is illegal, so there will always be a temptation to proceed without a lot of "red tape," if you have a close relationship with the surrogate. This is why it's important to consult with a family lawyer, who will undoubtedly press you to formalise an agreement before moving forward.