Surrogacy is a valid option for some couples looking to have children. However, putting together a valid surrogacy agreement can be challenging.

The family structure has evolved. Couples who were once unable to have children are now able to explore alternative options and grow their families. These options can include fertility treatments and adoption. Another option gaining in popularity is the use of a surrogate.

More on surrogacy

The term surrogacy refers to the use of a female to carry a fetus or multiple fetuses to term while another individual or individuals become the legal parent to the child or children at birth. Surrogacy can be achieved using either the surrogate mother’s egg or a donated egg from another individual. This egg is then fertilized by either the male partner’s sperm or donated sperm. The fertilized egg is then implanted in the womb of the surrogate mother.

Couples who choose to use surrogates often put together surrogate agreements. These arrangements can include provisions for prenatal care and are designed to provide protection to all involved, particularly the intended parents. Unfortunately, these agreements do not always stand when challenged in court.

The ultimate surrogacy battle: Baby M

One of the more famous cases questioning the validity of surrogacy agreements is likely the case of Baby M. This case occurred in the 1980s and involved a woman who agreed to carry a child for a wealthy couple. In exchange for providing the couple with a child, she was paid $10,000.

The surrogate carried the child to term and delivered a baby girl, referred to as Baby M. Upon birth of the child, the surrogate changed her mind. The surrogate relinquished the payment and attempted to keep the infant. The intended parents sued and the case went all the way to the New Jersey Supreme Court. According to a recent review of the case published in The New York Times, the Court held that the surrogacy contract used by the couple was an “affront to public policy” and called the payment “illegal, perhaps criminal, and potentially degrading to women,” ultimately equating it to “baby selling.” Although the court did not uphold the surrogacy agreement, it did hold on which parent should obtain custody of the child. Ultimately, the court awarded custody to the intended parents (which included the child’s biological father), stating it was in the best interest of the child.

Surrogacy is now much more widely accepted than it once was, but issues can still arise resulting in lawsuits questioning the agreements. Federal law has not yet officially addressed surrogacy. As a result, state laws govern.

Surrogacy and California state law

California state law provides guidance for creating a valid surrogacy agreement and state courts have consistently upheld challenges to valid surrogacy agreements. However, it remains advantageous to obtain legal representation prior to moving forward with a surrogacy arrangement. This legal professional can add the value of experience, preparing couples realistically for the costs and issues that can arise in these situations. A surrogacy lawyer can also help to better ensure that the contracts drafted for the agreement are valid as well as assist in resolving any disagreements that could arise between the couple and the surrogate.