Changes in legal frameworks allowing for greater clarity in surrogacy has opened the door for more families to grow via surrogacy and for more women to serve as gestational carriers while ensuring their legals rights are protected.
Surrogacy law is a crucial aspect governing whether a woman decides to proceed with surrogacy or not. Just the same, gestational surrogates should explore their legal rights before signing a contract or otherwise committing to serving as a surrogate.
The legal rights of the surrogate mother outline clearly:
- Legal representation
- Compensation
- Medical autonomy
- Privacy
- Contractual protections
Whether you know someone who has asked you to consider being their surrogate or you have a heart for helping a family experience their dreams of having a baby, get to know your rights as a surrogate as you explore the possibility.
Why Surrogacy Laws Matter
Surrogacy laws are in place to protect all parties involved, including the baby, intended parents, and the surrogate. The legal and regulatory safeguards guide the medical treatment process for the surrogate and baby but also ensure the intended parents’ rights with absolutely clarity.
Yet, surrogacy law in the U.S. is still complex because it is governed at the state level. That means that as you cross state borders, your rights shift. And some states have very clearly outlined surrogacy laws, while others rely on case law or court decisions.
As a result, the rights of the surrogate mother vary depending on where she entered into the agreement and where she delivers the baby.
Most states now have laws that make gestational surrogacy contracts with clear rights and responsibilities enforceable. This allows intended parents to establish legal parentage before birth, which simplifies the pathway to parenthood and the process of completing the child’s birth certificate.
Because the law has improved to this point of having clear roles and responsibilities, many intended parents and surrogates work with either a surrogacy agency or specialized attorneys to ensure agreements comply with applicable laws.
7 Legal Rights of the Surrogate Mother
Surrogates have undeniable rights during the process of carrying a child for another family. Here’s a look at seven of those rights so you know the best questions to ask when meeting with a surrogacy agency or attorney.
1. Right to Independent Legal Counsel
The surrogate is legally allowed to seek her own independent legal counsel or representation to ensure her rights and interests are properly protected throughout the surrogacy process. This might mean having a seperate attorney or just time to meet with a surrogacy agency without the intended parents present so the surrogate can speak candidly about preferences.
Having a right to independent legal counsel ensures that the surrogate has a chance to ask questions and fully understand the surrogacy process and what she’s committing to. This helps prevent conflicts of interest and promotes transparency and informed consent.
2. Right to a Written Surrogacy Agreement
Putting a surrogacy agreement in writing is always a good idea, no matter the state you enter into a surrogacy agreement in or how well you know the intended parents. This agreement clearly outlines the legal relationship between the surrogate and intended parents. It outlines responsibilities, expectations, protections and more for each party.
Some provisions you might address in your surrogacy agreement include:
- Compensation
- Expense reimbursement
- Medical procedures and prenatal care
- Decision-making during pregnancy
- Insurance coverage
- Privacy
- Confidentiality
- Legal process for establishing parentage
Surrogates and intended parents should sign the contract before beginning any part of the process, including fertility treatment to prepare for embryo transfer. This shows that both parties have entered into the agreement voluntarily and with clarity of the terms.
Failing to complete the contract phase of the process could mean that the child’s legal status is unclear.
3. Right to Medical Autonomy
Although surrogates carry someone else’s baby, the carrier still has fundamental rights over her medical care and how her body is treated. Medical autonomy is a critical element in the surrogacy agreement.
Surrogacy agreements can outline preferences the intended parents have regarding prenatal care, diet, lifestyle, or medical procedures, the surrogate cannot be forced into any medical treatments or procedures.
Therefore, the surrogate still has say over how medical complications or pregnancy management are handled. This ensures ethical treatment of the surrogate, but open communication between the surrogate and intended parents is still encouraged when such complications arise.
4. Right to Compensation and Expense Reimbursement
Pregnancy is not an inexpensive process, and often a surrogate’s medical insurance won’t cover prenatal care during surrogacy. While pregnant, a surrogate might also not be able to complete her normal tasks, such as caring for her household or maintaining her normal job.
As such, intended parents typically reimburse the surrogate for pregnancy-related expenses, such as:
- Medical bills
- Fertility treatments
- Health insurance premiums (when applicable)
- Maternity clothing
- Travel for medical appointments
- Lost wages during pregnancy or postpartum
Laws around surrogate compensation differ widely from state to state. Surrogates should fully review the compensation and reimbursement outlined in their surrogacy agreement carefully.
5. Right to Privacy and Confidentiality
Most surrogacy agreements include clauses that protect the privacy and confidentiality of the surrogate and the intended parents. In some cases, surrogates do not want the child they carry to ever know who they are.
Privacy protections provide comfort and security for surrogates while also reducing the likelihood of disputes.
6. Right to Health and Insurance Protections
Surrogates have rights when it comes to healthcare coverage and insurance. Many surrogacy agreements require that the intended parents provide health insurance that covers the surrogate’s pregnancy and delivery.
Some agreements even include requirements that the intended parents purchase life insurance for the surrogate during pregnancy and for a few months postpartum. That way, the surrogate has financial stability and safeguards throughout the pregnancy.
Clear insurance coverage details ensure that the surrogate is protected from unexpected financial burdens related to her carrying the child for the intended parents.
7. Right to Informed Consent
Before a surrogate can sign an agreement to begin the process, she must fully understand the following:
- The fertility procedures involved
- The medical risks of pregnancy
- The legal terms of the agreement
- Her rights and responsibilities
- The potential emotional implications of surrogacy
Without clarity on these aspects of the agreement, she cannot give informed consent. Often, surrogacy agencies require that the surrogate undergo psychological evaluations and counseling to ensure they are emotionally prepared and truly committed to the process.
Begin Your Surrogacy Journey with a Trusted Agency Invested in Protecting Your Rights
The surrogate’s rights are just as important as the rights of the intended parents. Accel Conceptions takes the process of explaining the surrogacy agreement clearly to those considering serving as a surrogate and commits to carefully pairing intended parents and surrogates whose goals and preferences align.
Ask your questions or get the conversation started now to begin your surrogacy journey with Accel Conceptions.