The Legal Angle To Surrogacy: Intended Parents’ Rights And The Ethical Aspect

We interviewed Victoria Gelfand - a legal expert in the field of surrogacy law whose law firm also functions as a facilitator of surrogacy journeys - to find out what rights intended parents have after their child is born and what is her view on the ethical aspect of surrogacy. 

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Tell me about the last step in the surrogacy journey - the birth. I know that intended parents' worst nightmare is that their surrogate will change her mind or that something will go wrong during the birth. What should intended parents protect themselves from?

There were numerous cases where issues about parental rights came up. There is a legal process of parentage, when the court terminates the surrogate’s parental rights and grants those parental rights and obligations to the intended parents. That should happen either during the pregnancy in the form of a pre-birth order, or it can happen after the birth with a post-birth order. It depends on the state, the system and the acceptable methodology, and it should be up to your legal advisor to come up with the solution that best fits your needs. Eventually, when you get to that process, you have the intervention of the court and the court will decide who will be the baby’s parent or parents. 

There were maybe about 100 cases where parties disagreed on parentage rights, out of tens of thousands of surrogacy births. When it did happen, it was mostly when the parties did not use an agency at all. In most cases, the pre-screening process was not done properly or was not performed at all, the contracts were poorly drawn up or there was no written contract at all, only verbal understandings. 

When it comes to traditional surrogacy, where the carrier is also the genetic mother of the child - an option that has become much less popular in recent years - the court may agree that the surrogate is indeed the mother of the child and grant her parental rights. But in gestational surrogacy, where the embryo is made up of genetics unrelated to the surrogate, if the surrogate doesn’t want to terminate her parental rights the courts side with the intended parents.

However, it's not always only about the final result, because no one wants to go through a legal trial. So the pre-screening, the proper management of the process, the contract, the separate legal representation for intended parents and surrogate - these are the things that will make a difference. 

After going through the psychological process, there is a professional reaffirmation that the surrogate understands and fully accepts that she only carries the pregnancy and will not parent the child. Actually, many surrogates are afraid that the intended parents will change their mind and won’t come to pick up the baby. 

Watch the full interview with Victoria Gelfand

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I want to ask you about the ethical aspect of surrogacy, because there are people who claim that paying someone to have your child is turning babies into products. What is your view on that?

There are guidelines which have already been put in place by legal professionals. The code of ethics was established by SEEDS - the Society for Ethics in Egg Donation and Surrogacy - and there’s also an ethical framework suggested by the Men Having Babies organization, in the drafting of which I took part. 

Many professionals who work in this field are strong believers in adhering to the code of ethics. Being an intended parent and wishing to bring a child into the world doesn't necessarily make you right. Being a surrogate doesn’t always make you right. A good attorney should always balance the different needs of both sides. When we represent intended parents and they ask to change certain things in the contract, for example that the surrogate must refrain from various things, it is sometimes our job to say “you shouldn’t ask for that,” or “it won’t serve your interest,” or “Things like that can damage your relationship with the surrogate”. You want to have a relationship of mutual respect. When the surrogate sees you respect her needs, she will respect yours in return. 

We also expect our colleagues, who represent surrogates, to understand the needs of the intended parents. When they overzealously represent the surrogate without acknowledging the needs of the other people involved, sometimes this means we cannot reach an agreement. Nobody should be a slave to the process. This is not just an interaction, it’s a relationship. This is part of our code of ethics - whatever we do, we put the relationships first: with your agency, surrogate, clinic, donor, attorney, escrow holders and everyone involved, these are first and foremost relationships and everyone should respect everyone else. 

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Basically, your goal is to help the intended parents go through this process without having to fight in court or execute the legal contract they've signed, correct?

Exactly. When we guide the intended parents through the contract we want to assure that they really understand what they are signing. We look at each and every contract related to the process, starting with the agency contract, then the egg donor and surrogate, and so on. 

We always tell the intended parents that the contracts are like a roadmap leading them to their next step in the process. When we explain to them about the various scenarios described in the contracts, they can understand what may happen further down the road and prepare for the many ways things can unfold. 

Sometimes everything goes smoothly, sometimes not so much. But if you are aware of all the possibilities, I believe it can help you feel more secure in the process and if anything does happen, you won’t feel like your whole world fell apart. 

So in summary - I would say that naturally, good legal contracts are there to protect the intended parents and the surrogate, prepare them for what’s ahead and safeguard the integrity of the process. 

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