The context

We discuss here in general terms the legal duties of a surrogate mother in the United States, highlighting differences in state laws when applicable, and addressing separately the matters of a surrogate mother’s duties towards the child to be born and towards the intended parents.

Disclaimer: Los Angeles Surrogacy is neither an attorney nor a law firm. This article does not give or purport to give any legal advice. Refer to your attorney to obtain legal advice in regards to your case. This article is for general informational purpose only.

Duties of a Surrogate Mother Towards the Child

The primary duty of a surrogate mother is to carry the child to term and ensure the child’s safety and well-being throughout the pregnancy. The surrogate is expected to follow medical advice, attend prenatal appointments, and maintain a healthy lifestyle to promote the child’s health.

State laws vary on the legal relationship between the surrogate and the child. In some states, the surrogate is considered the child’s legal mother until parental rights are transferred to the intended parents. In others, the intended parents are recognized as the child’s legal parents from the outset. In states where the surrogate is recognized as the legal mother, she may have a legal duty to act in the best interest of the child until her parental rights are terminated.

While specific case law may not directly address the statement, “The surrogate is expected to follow medical advice, attend prenatal appointments, and maintain a healthy lifestyle to promote the child’s health”, it is important to recognize that these expectations generally arise from the surrogacy agreement or contract between the surrogate and the intended parents. 

Court cases often focus on disputes over the enforceability or interpretation of surrogacy contracts, which may indirectly involve surrogate’s obligations related to prenatal care and maintaining a healthy lifestyle.

For example:

  1. In re Baby M (1988) – New Jersey

In this landmark case, surrogate mother Mary Beth Whitehead sought to retain custody of the child she had carried for the intended parents, William and Elizabeth Stern. While the court ultimately ruled that the surrogacy contract was unenforceable, the case highlighted the importance of outlining the surrogate’s obligations and responsibilities in the surrogacy agreement, which can include following medical advice and maintaining a healthy lifestyle.

  • Johnson v. Calvert (1993) – California

In this case, surrogate mother Anna Johnson and intended parents Mark and Crispina Calvert were in a dispute over the custody of the child. The court upheld the validity of the surrogacy agreement, which defined the duties and responsibilities of the surrogate, including her prenatal care obligations. This case reaffirmed the importance of a clear and enforceable surrogacy contract in defining the responsibilities of the surrogate.

While these cases do not explicitly address the surrogate’s duty to follow medical advice, attend prenatal appointments, and maintain a healthy lifestyle, they emphasize the importance of having a comprehensive surrogacy agreement to outline the expectations and responsibilities of all parties involved. Surrogacy contracts typically include provisions regarding the surrogate’s obligations to ensure the child’s health and well-being throughout the pregnancy.

Duties of a Surrogate Mother Towards the Intended Parents

As concluded above, the duties of a surrogate mother towards the intended parents primarily stem from the surrogacy agreement or contract. Such agreements typically outline the surrogate’s obligations, including medical care, communication with the intended parents, and consent to relinquish the child upon birth. 

It is crucial for the surrogate to adhere to the terms of the agreement to ensure a smooth process and avoid potential legal disputes. 

In this, the surrogacy agency guiding the process of establishing contractual relationships between a candidate surrogate and intended parents has to be aware of the existence of state-level differences in surrogacy contract law, even though the responsibility of determining the jurisdiction under which such contracts are established ultimately behooves the intended parents, the candidate surrogate, and their respective attorneys.

State Laws and the Impact on Surrogacy

The legal landscape for surrogacy in the United States is highly fragmented, with each state having its own set of regulations. Some states are considered “surrogacy-friendly,” meaning they have clear laws in place to facilitate and enforce surrogacy agreements. Examples of such states include California, Connecticut, and Delaware.

In some states, such as California, the intended parents can obtain a pre-birth order that legally establishes their parental rights before the child’s birth. In these cases, the surrogate’s legal duties towards the intended parents are determined by the court order and the surrogacy agreement.

Other states have less favorable laws, with some even criminalizing surrogacy or prohibiting surrogacy contracts. 

For example, Michigan has strict laws prohibiting surrogacy contracts, making them unenforceable. 

Michigan’s Surrogate Parenting Act (MCL 722.851 et seq.) prohibits all surrogacy contracts, whether compensated or altruistic. The law states:

  • MCL 722.855: “A surrogate parentage contract is void and unenforceable as contrary to public policy.”
  • MCL 722.859: “A person who enters into, induces, arranges, procures, or otherwise assists in the formation of a surrogate parentage contract for compensation is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $10,000.00, or both.”

In the State of New York, as of February 15, 2021, the legislature has legalized compensated surrogacy through the Child-Parent Security Act (CPSA). Prior to this legislation, New York’s Domestic Relations Law (DRL) § 122 declared surrogacy contracts to be unenforceable and subjected the parties involved to fines. 

The passage of the CPSA effectively repealed the previous ban and replaced it with a comprehensive framework for surrogacy contracts, establishing protections for all parties involved and setting forth requirements for the surrogacy process.

  • Child-Parent Security Act (CPSA): Part 3 of Chapter 56 of the Laws of 2020, Article 5-C of New York Family Court Act, and Article 8 of New York Domestic Relations Law.

In Summary

The legal duties of a surrogate mother in the United States can be complex and vary greatly depending on the state laws and the surrogacy agreement in place. It is crucial for all parties involved, including the surrogate and intended parents, to be aware of the laws in their jurisdiction and seek legal counsel to navigate the intricate legal landscape of surrogacy.

Surrogacy agencies such as a Los Angeles Surrogacy never give legal advice to surrogates and intended parents. The mission of a surrogacy agency is to match the parties, and guide the surrogacy process from end to end, referring both parties to resources and advisors as needed.

By Manali