Undoubtably a legally complex area is that of surrogate motherhood. In the most common arrangement, a married couple in which the husband is fertile but the wife is unable to carry a pregnancy, enter into a privately arranged contract with a fertile woman. This fertile woman (the surrogate mother) agrees to be artificially inseminated with the sperm of the fertile husband. Alternatively, the surrogate mother may be impregnated with an embryo produced by the wife’s ovum. In either case, the surrogate mother carries the pregnancy until delivery, and then, per the contract, assumes no parental rights or responsibilities and relinquishes the infant to the couple initiating the contract. These reproductive arrangements enable one woman to bear a child for another, thus separating genetic, gestational, and rearing parentage. Surrogate motherhood raises medical, psychological, ethical, and legal questions involving procreative privacy and the nature of parenting and family life.
The desire to have a child who is genetically related to at least one parent may make surrogacy a more attractive option than adoption for some couples. When women take on the role of surrogate mother to assist members of their own family, few legal complications arise. In some cases where women have agreed to the procedure for financial compensation, major legal issues have arisen. About half the states have laws which address surrogacy. In some states, surrogate mother contracts are illegal and entering into them can result in criminal charges. Other states rule that such contracts are invalid.
In an artificial insemination case, in which the husband is the donor to the surrogate, a court order can be obtained prior to the birth of the child that the husband is the father of the child. After the child is born, the surrogate mother signs consent forms which either terminate her parental rights, leaving the man with sole custody of the child or which allow the wife of the couple to adopt. In a case involving egg fertilization outside the womb and an embryo transplant to the womb of the surrogate, a pre-birth court order can be obtained indicating that the couple is the child’s biological parents. In this case, no adoption is necessary.