In Vitro Fertilization - Legal Aspects
There are two vital legal stages to any gestational surrogacy arrangement: Contracts and Finalization of Parental Rights. Both stages will reflect the legal relationships established pursuant to an In-Vitro Fertilization ("IVF") procedure. Both the Intended Parents and the Surrogate (and her spouse) must be involved in executing legal contracts as well as finalizing the parental rights of the Intended Parents so they may be deemed the legal parents.
Stage I - Contracts
The surrogacy contract must be executed by and between the Intended Parents and the Surrogate (and her spouse, if any) prior to the IVF transfer. The contract outlines each parties’ rights and responsibilities, including provisions regarding compensation, medical and psychological screening, selective reduction, medical insurance and parental rights. So as to avoid any conflict of interest, the Intended Parents and the Surrogate (and her spouse, if any) will retain separate attorneys with whom they may review the contract.
While only a few states have explicitly banned third party reproductive technologies, most states do not have any laws whatsoever regarding the enforceability of surrogacy or donation contracts. Even in California, the courts and the legislature have not specifically addressed this issue. Nevertheless, comprehensive contracts should be executed prior to entering into any surrogacy or donation arrangement to memorialize the intent of the parties.
As two recent ground-breaking California cases, Johnson v. Calvert and Buzzanca v. Buzzanca, have illustrated, legal parental relationships may be established when Intended Parents initiate and consent to medical procedures intending to create a child they will raise, regardless of whether there is a genetic relationship between them and the child. Accordingly, in the hypothetical case of a couple using the services of a Surrogate and an Egg Donor, a court (depending on the state) would look to the contract to determine who intended on raising the child, and rule accordingly.
Stage II - Finalization of Parental Rights
One of the primary goals to any surrogacy arrangement is to have the Intended Parents be legally recognized as the legal parents of their baby. This stage requires the involvement by the Intended Parents, the Surrogate and her spouse.
States differ as to which procedures will be required to deem the Intended Parents the child’s legal parents. In California, for example, a pre-birth Judgment of Maternity and Paternity is obtained, allowing the hospital and the Department of Vital Records to place the Intended Parents’ names on the birth certificate. This is the procedure for any type of surrogacy arrangement in which the Surrogate resides and delivers in that state. Further, this Judgment allows custody of the child to be awarded to the Intended Parents as soon after birth as medical considerations will allow.
This adjudication eliminates the necessity of any adoption proceedings and legally recognizes the intended relationship that the parties had created. Moreover, the Judgment of Maternity and Paternity terminates any parental rights which may have vested in the Surrogate and her husband.
With regard to gestational surrogacy, other states are beginning the follow the lead of California in permitting Judgments of Maternity and Paternity: Wisconsin, Virginia, Pennsylvania, Maryland, Florida, Colorado, Nevada, Illinois and Connecticut all recognize the same procedure to some degree.
While a small handful of states may not recognize the Intended Parents as the legal parents, other states will recognize the biological, Intended Father as the legal parent and will require a step-parent adoption by the Intended Mother in her home state. Regardless of the method used, the goal will be to place both Intended Parents’ names on the child’s final birth certificate. It is important to note that no couple working with CSP has ever failed to finalize their parental rights.