What Happens If Your Gestational Surrogate Changes Her Mind?

Posted on: 6 January 2015

If you've chosen to expand your family by using a gestational surrogate, congratulations! Your life is about to change in many wonderful ways. However, this method of reproduction is not without some legal risk -- and unfortunately, state laws governing these situations have often not caught up with the real needs of surrogates and the other participants in this process. Read on to learn more info about what may happen if the surrogate you choose decides to keep the baby or disobeys your instructions regarding the baby's needs.

How is gestational surrogacy used?

Although some infertility is due to defects in egg or sperm, in many other cases, both partners are fertile but simply unable to conceive on their own. In some cases, the female may have scarring in her uterus or fallopian tubes that prevents the egg from being fertilized, while in other cases, the male may have similar scarring in his vas deferens, preventing the release of sperm. And even if fertilization can happen naturally, some women have physical or emotional issues that prevent them from carrying a child.

By using a gestational surrogate, these couples are able to conceive a child using their own egg and sperm, but allow the child to be carried to term by another individual -- the surrogate. Surrogacy arrangements generally have a high success rate, and in most cases, at least 85 percent of participant parents will leave the process with their own baby.

In surrogacy situations, all parties will sign a contract. The parents will pay any medical expenses of the surrogate, as well as an additional fee for the surrogate's time, effort, and discomfort. In exchange, the surrogate agrees to release all rights she has to the child, and promises to relinquish the child to the parents upon birth. A well-written contract should also hit on other areas, such as what the parties should do in the event of a dispute.

What legal recourse do you have if the surrogate tries to keep the baby?

Unfortunately, in some situations the best intentions may go awry. The surrogate may stop attending medical appointments or may engage in activities that can harm the baby. In other cases, the surrogate may actually abscond with the baby after birth. Until recently, state laws governing surrogacy were unclear -- traditionally, these laws were written so that the person who gave birth to the child was by default the child's mother. With the rise in surrogacy and egg donation, these laws have been changed, but the legislative process is slow and there are still some unintended consequences.

Once you've learned that your surrogate intends to keep your child, your first step should be to contact an attorney to review the contract you and the surrogate have executed. Your attorney will be able to evaluate your legal standing and determine your chances of success at a civil lawsuit, if needed. This attorney will also be able to evaluate the options presented in your contract for resolution of this dispute outside of court.

Your second step should be to set up a mediation or arbitration and invite the surrogate. These types of proceedings allow both parties to be heard, and utilize a neutral to help bring parties together to come to an agreement. In many surrogacy situations, mediation has been helpful at encouraging the surrogate to relinquish custody of the child to the biological parents in exchange with some minor visitation time or additional financial compensation.

If mediation is unsuccessful, you'll probably want to file a lawsuit to enforce the contract. A court may then require the surrogate to relinquish custody and even assess civil financial penalties for breach of the contract.

Fortunately, few surrogacy arrangements end up in court -- but this possibility underscores the need for a well-written contract and clear negotiation up front.