{"id":133318,"date":"2025-08-28T13:48:03","date_gmt":"2025-08-28T21:48:03","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/08\/28\/ambiguity-in-surrogacy-cases-means-a-need-for-clear-cut-agreements\/"},"modified":"2025-08-28T13:48:03","modified_gmt":"2025-08-28T21:48:03","slug":"ambiguity-in-surrogacy-cases-means-a-need-for-clear-cut-agreements","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/08\/28\/ambiguity-in-surrogacy-cases-means-a-need-for-clear-cut-agreements\/","title":{"rendered":"Ambiguity in Surrogacy Cases Means a Need for Clear-Cut Agreements"},"content":{"rendered":"

In the wake of the Supreme Court\u2019s 2022 Dobbs v. Jackson Women\u2019s Health Organization<\/em> decision, which overturned the precedents set by Roe v. Wade<\/em> (1973) and Planned Parenthood v. Casey<\/em> (1992), states are approaching the issue of surrogate parenting rights differently.<\/p>\n

It was only in April of this year that Michigan passed a law<\/a> allow surrogacy agreements to encompass \u201cpayment\u201d for those who carry the child to term before turning over the newborn child to its parents. Michigan has codified its state law to spell out the specifics of surrogacy compensation, while other states, such as Massachusetts, have updated statewide laws to remove specific gendered terms in the surrogacy process to ensure equal opportunities<\/a> for the LGBTQ+ community.<\/p>\n

Changes in surrogacy law in Michigan, Massachusetts and other states are good first steps toward promoting equity and increasing opportunity for people to become parents. However, there continues to be major disparity between different jurisdictions that lack clear and comprehensive frameworks, leaving couples and surrogates vulnerable. If is crucial that to-be parents and their surrogates work with an attorney to draft a legal plan for before, during and after the surrogacy process.<\/p>\n

Post-Dobbs<\/em> <\/strong>Legal Questions<\/strong><\/h2>\n

Following Dobbs<\/em>, new ethical and legal questions have arisen regarding how each state legally defines \u201cfetal personhood.\u201d In Florida, surrogate mothers stand to receive financial compensation<\/a> to cover reasonable expenses incurred throughout the surrogacy process. Although Florida does not yet have a fetal personhood law, policies exist in many other states, which may further complicate the overall surrogacy process. For example, Alabama\u2019s highly publicized brouhaha LePage v. Center for Reproductive Medicine, P.C<\/em><\/a>. <\/em>over IVF and legal fetal personhood<\/a> is a prominent case.<\/p>\n

Such clarifications are also important in determining what rights the surrogate parent who has carried the child to term has. There are even extreme cases where the courts need to step in, including one instance in Georgia<\/a> where a woman sued her fertility clinic after mistakenly implanting another couple\u2019s baby in her uterus\u2014effectively turning her into an unwitting surrogate parent.<\/p>\n

While those cases are somewhat extreme, they underline the need for legal agreements regarding surrogacy arrangements\u2014particularly to spell out what happens in the event that the parents split up.<\/p>\n

Crafting the Agreement <\/strong><\/h2>\n

Deciding to bring a child into the world is one of the most important and personal decisions. But no matter how joyous you and your partner are to become parents, you should consider a legal agreement between you and the surrogate parent. The contract should include provisions outlining how much the surrogate parent will be compensated, each intended parent\u2019s rights, and custodial expectations.<\/p>\n

In many jurisdictions parents-to can select a \u201cpre-birth order\u201d of custody to establish their legal right as the parent from the moment of birth. This is intended to head off later disputes if the couple separates.<\/p>\n

A family law attorney can craft specific language surrounding the exigencies of what happens if the couple does break up, either before the birth or later on, when it comes to fiscal and custodial responsibility for their shared child.<\/p>\n

A Separation During the Surrogacy <\/strong><\/h2>\n

Pre-term breakups are surprisingly common and can be a difficult pill to swallow. Couples prepare to be together with their partner forever and many become parents without any legal agreement in place. In the event that a couple splits up while the surrogate is still pregnant, and if no pre-agreement is in place, family law courts will typically determine custody sharing\u2014effectively taking the situation out of the parents\u2019 hands entirely.<\/p>\n

Having already invested so much time and energy (and money) into your surrogacy, it is important to have a formal agreement delineating custody arrangements so as not to further exacerbate the stress and difficulty of navigating separation. This includes aspects such as the primary residency of the child, parenting time, financial responsibilities, communication preferences, and the process for amending the agreement.<\/p>\n

With this proactive approach, a judge or a neutral mediator will make determinations regarding what legal and fiscal obligations the parent who wishes to terminate the agreement must still abide by.<\/p>\n

A Separation After the Birth<\/strong><\/h2>\n

Despite a couple\u2019s best intentions to stay together, feelings change, love wanes, and a breakup becomes inevitable. Determining co-parenting obligations for the parents of a surrogate child is remarkably similar to what occurs for the biological parents of a child who split up; there are no \u201csurrogacy-specific\u201d provisions for a judge or mediator to consider.<\/p>\n

Courts and mediators will determine what is in the child\u2019s best interests, even if one parent took a lesser active role during the pregnancy. For non-biological parents, parental rights might even hinge on the validity of the pre-birth surrogacy agreement (yet another reason to get a lawyer involved early on) and whether or not one party has adhered to it strictly.<\/p>\n

It is important to note that courts in some states take a comprehensive look at the couple\u2019s situation that goes above and beyond any surrogacy or pre-birth agreements; again, this is to put the child\u2019s best interests front and center.<\/p>\n

Start the Planning Process Early<\/strong><\/h2>\n

As a mother myself, I know well the joys that come with becoming a parent and raising children to maturity. But, as an attorney, I am also keenly aware of how uncertain and difficult separations can be as they affect not only the spouses but also their children. The same is true in surrogacy situations. Regardless of biology, all parents must look to the long term for their child\u2019s well-being.<\/p>\n

The legal landscape for surrogate parents continues to shift state by state, so plan early in the surrogacy process to ensure that your child\u2019s future will be safe and secure\u2014and filled with love.<\/p>\n

The post Ambiguity in Surrogacy Cases Means a Need for Clear-Cut Agreements<\/a> appeared first on Attorney at Law Magazine<\/a>.<\/p>\n

In the wake of the Supreme Court\u2019s 2022 Dobbs v. Jackson Women\u2019s Health Organization<\/em> decision, which overturned the precedents set by Roe v. Wade<\/em> (1973) and Planned Parenthood v. Casey<\/em> (1992), states are approaching the issue of surrogate parenting rights differently.<\/p>\n

It was only in April of this year that Michigan passed a law<\/a> allow surrogacy agreements to encompass \u201cpayment\u201d for those who carry the child to term before turning over the newborn child to its parents. Michigan has codified its state law to spell out the specifics of surrogacy compensation, while other states, such as Massachusetts, have updated statewide laws to remove specific gendered terms in the surrogacy process to ensure equal opportunities<\/a> for the LGBTQ+ community.<\/p>\n

Changes in surrogacy law in Michigan, Massachusetts and other states are good first steps toward promoting equity and increasing opportunity for people to become parents. However, there continues to be major disparity between different jurisdictions that lack clear and comprehensive frameworks, leaving couples and surrogates vulnerable. If is crucial that to-be parents and their surrogates work with an attorney to draft a legal plan for before, during and after the surrogacy process.<\/p>\n

Post-Dobbs<\/em> <\/strong>Legal Questions<\/strong><\/h2>\n

Following Dobbs<\/em>, new ethical and legal questions have arisen regarding how each state legally defines \u201cfetal personhood.\u201d In Florida, surrogate mothers stand to receive financial compensation<\/a> to cover reasonable expenses incurred throughout the surrogacy process. Although Florida does not yet have a fetal personhood law, policies exist in many other states, which may further complicate the overall surrogacy process. For example, Alabama\u2019s highly publicized brouhaha LePage v. Center for Reproductive Medicine, P.C<\/em><\/a>. <\/em>over IVF and legal fetal personhood<\/a> is a prominent case.<\/p>\n

Such clarifications are also important in determining what rights the surrogate parent who has carried the child to term has. There are even extreme cases where the courts need to step in, including one instance in Georgia<\/a> where a woman sued her fertility clinic after mistakenly implanting another couple\u2019s baby in her uterus\u2014effectively turning her into an unwitting surrogate parent.<\/p>\n

While those cases are somewhat extreme, they underline the need for legal agreements regarding surrogacy arrangements\u2014particularly to spell out what happens in the event that the parents split up.<\/p>\n

Crafting the Agreement <\/strong><\/h2>\n

Deciding to bring a child into the world is one of the most important and personal decisions. But no matter how joyous you and your partner are to become parents, you should consider a legal agreement between you and the surrogate parent. The contract should include provisions outlining how much the surrogate parent will be compensated, each intended parent\u2019s rights, and custodial expectations.<\/p>\n

In many jurisdictions parents-to can select a \u201cpre-birth order\u201d of custody to establish their legal right as the parent from the moment of birth. This is intended to head off later disputes if the couple separates.<\/p>\n

A family law attorney can craft specific language surrounding the exigencies of what happens if the couple does break up, either before the birth or later on, when it comes to fiscal and custodial responsibility for their shared child.<\/p>\n

A Separation During the Surrogacy <\/strong><\/h2>\n

Pre-term breakups are surprisingly common and can be a difficult pill to swallow. Couples prepare to be together with their partner forever and many become parents without any legal agreement in place. In the event that a couple splits up while the surrogate is still pregnant, and if no pre-agreement is in place, family law courts will typically determine custody sharing\u2014effectively taking the situation out of the parents\u2019 hands entirely.<\/p>\n

Having already invested so much time and energy (and money) into your surrogacy, it is important to have a formal agreement delineating custody arrangements so as not to further exacerbate the stress and difficulty of navigating separation. This includes aspects such as the primary residency of the child, parenting time, financial responsibilities, communication preferences, and the process for amending the agreement.<\/p>\n

With this proactive approach, a judge or a neutral mediator will make determinations regarding what legal and fiscal obligations the parent who wishes to terminate the agreement must still abide by.<\/p>\n

A Separation After the Birth<\/strong><\/h2>\n

Despite a couple\u2019s best intentions to stay together, feelings change, love wanes, and a breakup becomes inevitable. Determining co-parenting obligations for the parents of a surrogate child is remarkably similar to what occurs for the biological parents of a child who split up; there are no \u201csurrogacy-specific\u201d provisions for a judge or mediator to consider.<\/p>\n

Courts and mediators will determine what is in the child\u2019s best interests, even if one parent took a lesser active role during the pregnancy. For non-biological parents, parental rights might even hinge on the validity of the pre-birth surrogacy agreement (yet another reason to get a lawyer involved early on) and whether or not one party has adhered to it strictly.<\/p>\n

It is important to note that courts in some states take a comprehensive look at the couple\u2019s situation that goes above and beyond any surrogacy or pre-birth agreements; again, this is to put the child\u2019s best interests front and center.<\/p>\n

Start the Planning Process Early<\/strong><\/h2>\n

As a mother myself, I know well the joys that come with becoming a parent and raising children to maturity. But, as an attorney, I am also keenly aware of how uncertain and difficult separations can be as they affect not only the spouses but also their children. The same is true in surrogacy situations. Regardless of biology, all parents must look to the long term for their child\u2019s well-being.<\/p>\n

The legal landscape for surrogate parents continues to shift state by state, so plan early in the surrogacy process to ensure that your child\u2019s future will be safe and secure\u2014and filled with love.<\/p>\n

The post Ambiguity in Surrogacy Cases Means a Need for Clear-Cut Agreements<\/a> appeared first on Attorney at Law Magazine<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

In the wake of the Supreme Court\u2019s 2022 Dobbs v. Jackson Women\u2019s Health Organization decision, which overturned the precedents set by Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), states are approaching the issue of surrogate parenting rights differently. It was only in April of this year that Michigan passed a law allow […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[17],"tags":[],"class_list":["post-133318","post","type-post","status-publish","format-standard","hentry","category-legal_matters"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/133318","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=133318"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/133318\/revisions"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=133318"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=133318"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=133318"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}