Although many people primarily associate family law with divorce and marital dissolution, family law also plays an important role in family construction. Assisted reproductive technology (ART) has been rapidly progressing in recent decades, opening up several avenues for people to have children, but law has struggled to keep pace with emerging technologies.
Surrogacy is one of the most complex ART options, but it has enabled thousands of single people, infertile couples, and same-sex couples to have children. Two different kinds of surrogacy exist: “traditional” surrogacy uses the surrogate’s own ova, so she is genetically related to the resulting child, whereas a “gestational” surrogacy uses a donated egg paired with either donated sperm or sperm from the intended father. Traditional surrogacy has a long history, but gestational surrogacy only became possible in the latter 20th century with the development of in vitro fertilization (IVF).
Planning is Everything
Every part of the surrogacy process must be carefully choreographed to be successful. Ovulation cycles and implantation attempts need to be timed perfectly. Even matching intended parents to a surrogate and possible egg and sperm donor requires planning. Intended parents should decide in advance how involved they want to be in the pregnancy and how involved they want the surrogate to be after the child is born, so they can seek a surrogate with the same preferences.
If you are considering using a surrogate, you should also tackle the topics nobody wants to think about: what to do if the fetus develops a detectable illness or disability? What if more embryos take than you originally planned? Are you (and your partner, if you have one) open to the idea of selective abortion? Or abortion at all? How will you pay for unexpected medical or other expenses? This introspection is painful now, but not nearly as devastating as it would be if you encounter a problem further down the road.
Different states’ approaches to surrogacy truly run the gamut: some have passed detailed statutes, some refuse to enforce surrogacy contracts, some prohibit compensating the surrogate, some have nothing on the books at all, and some go as far as to criminalize surrogacy.
Fortunately, practitioners of both law and medicine have stepped up to develop self-regulated systems to protect the interests of all parties to a surrogacy agreement. The American Academy of Assisted Reproductive Technology Attorneys, for example, has its own Code of Ethics and a nationwide directory of hundreds of lawyers who have each handled dozens of ART cases (see http://www.aaarta.org/aaarta/home). Surrogacy contracts are extremely detailed and have to cover the surrogate’s conduct before, during, and after the pregnancy. This is one of the reasons an experienced attorney is critical. They know to how plan for contingencies that might not occur to the parties, and they can identify when the expectations in the contract have gone too far.
Maryland falls somewhere in between the extremes of different state approaches. There are no statutes in the Maryland Code pertaining to surrogacy, but it is generally considered to be a surrogacy-friendly state, meaning courts will generally accept surrogacy agreements as well as pre-birth orders to have the intended parent(s) names listed on the birth certificate. But because many intended parents team up with surrogates or sperm or egg donors from other states, it is critical to have an attorney who can ensure everyone follows the laws of all the relevant locations.
Pregnancy is risky under any circumstances, and surrogacy adds a whole host of financial, emotional, and biological hurdles to the experience. Add to that the increases in marrying age, same-sex marriage, and the legal minefield created by the non-uniformity of state laws, and it becomes clear that although surrogacy and ART is here to stay, the process is certainly not simple or streamlined enough to go about without professional guidance.