What are the legal ramifications of a separation/divorce during the surrogacy process? Can a surrogate keep the baby if the parents decide to give him/her up for adoption?
By Evie Jeang, Family Lawyer
A new baby brings love and joy to new parents – but fitting a newborn into the family unit’s established routines can also lead to stress. Those who choose to become parents through surrogacy are no exception.
The decision to pursue the path of bearing a child by way of a surrogate is not always an easy one to make. Some couples resort to surrogacy after trying to become pregnant for a number of years; for others, pregnancy poses an unacceptably high health risk for the would-be mother. And for gay couples, surrogacy is the only way to have one partner’s biological child.
Surrogacy can be a daunting task: meeting with the surrogate, creating embryos, monitoring during pregnancy, the child’s arrival, and growing accustomed to being new parents. It cannot be denied that bringing a child into the world significantly changes the dynamics of family life.
The Surrogacy Process Can Be Daunting – Especially When the Couple Separates
Surrogacy can be an extremely stressful time for a couple, taking both an emotional and financial toll on both prospective parents. Unfortunately, there are situations where couples go their separate ways. But what are the legal ramifications of a relationship ending during the surrogacy process itself?
One such example of this is couple Sherrie Shephard and Lamar Sally. Sherrie and Lamar entered into a contract with a surrogate during their marriage. The two separated before the child’s birth and Sherrie filed for divorce. Sherrie claimed that her partner, Lamar, had pressured her into agreeing to the surrogacy contract.
Sherrie brought suit and requested that the court void the contract on the grounds that she was not present at the birth and that her name was not on the birth certificate. Legally, this altered how medical costs of the child would be divided. Lamar Sally took full custody of the child and the court reserved jurisdiction on determining whether Sherrie is the child’s legal mother.
What Happens if a Couple Separates During the Surrogacy Process?
This question can be answered by understanding what happens when a couple undergoing a standard birth decides to separate prior to their child being born.
In this situation, there are several different decisions a couple can make. The most common include:
- Creating a custody agreement
- Giving one parent full custody of the child
- Putting the baby up for adoption.
These same principles apply to a separation between the Intended Parents of a surrogate pregnancy prior to the child’s birth. The Intended Parents must decide on the next step.
Are There Circumstances Under Which the Surrogate Keeps the Baby?
Another frequently asked question is if a surrogate may keep the child if the parents decide to give the baby up for adoption or if the parents pass away before the baby is born. This decision is left to the Intended Parents and not the surrogate.
In summary, there is no clear-cut answer to what happens when a couple separates during the surrogacy process, but there are multiple options parents can choose from. Although this type of situation is neither common nor favorable, it is always in the best interest of any person involved in surrogacy to know what their options are.
The surrogacy process can be difficult to navigate. This is why it is important for couples to do their research and consider speaking with a lawyer who specializes in family and surrogacy law before embarking on their journey.
Evie Jeang is the founder and CEO of Ideal Legal Group, a boutique family law firm, and Surrogacy Concierge, a full-service agency for the surrogacy and fertility needs of growing families. An attorney licensed to practice law in California and New York, she has over 15 years of experience in the areas of international family law and surrogacy law. www.surrogacyconcierges.com.
What we know now, and what to expect in the future. Although it’s impossible to say for certain, it’s reasonable to expect that as surrogacy options become more widely available for same-sex couples, new conflicts may also arise.
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