Gestational carrier programs are emotional and, unfortunately, legally complicated. Parties involved in a gestational carrier agreement face many problems before, during and after the completion of the agreement. Below is an explanation of the legal concerns of gestational carrier programs.
The first problem with gestational carrier programs is that they are illegal in many states. Sometimes referred to as “surrogacy”, these programs have often been specifically identified and outlawed in many states. States in which such programs have not been outlawed often heavily regulate such programs or, in contrast, act as though they do not exist. The reason why many of these programs are illegal is because of the difficulty to determine which adults have rights to the child. Prior to choosing a program, seek legal advice about whether such programs are allowed in your state. You may find that you have to work with a carrier in another state.
Parental Rights to the Fetus
The main, and most complicated, legal concern after a gestational program has begun is which parties have parental rights to the child. In most states, the parents that donated the egg have no rights to the child and the woman carrying the child has the right to do as she pleases with the baby. Although most programs require all parties to sign contracts governing the agreements that will outline the rights to the fetus, these contracts cannot supersede state law. As such, the donors of the egg and sperm may find themselves without any rights to the fetus developed from their use.
To transfer parental rights of the child to the donors of the egg and sperm from which it developed, it is necessary for the parties involved in the program to enter into an adoption agreement. This agreement is usually executed immediately after the child’s birth, and it legally transfers the child to the donors of the egg and sperm (as the parents).
The difficulty with this is that there is no certainty that the carrier will participate in such an agreement. Because the law views the carrier as the parent to the fetus, there is no way to force the carrier to adopt out the child after its birth or to not change her mind within the 48 hour “contemplation” period permitted by most states. As such, the donors of the egg and sperm will not be sure that they will actually have a child until after the passage of the contemplation period in the adoption agreement.
Control over the Carrier
Because the law views the carrier as the lawful parent to the fetus, there is very little that can be done to control the health and behavior of the carrier. Despite what the program contract states, neither the program nor the egg and sperm donors are able to dictate what the carrier eats, how often she exercises or other aspects of the pregnancy.