The legal complications of surrogacy.

Answers to your questions about the news.
June 25 2009 6:37 PM

Will Sarah Jessica Parker's Surrogate Get Visitation Rights?

No.

Matthew Broderick and Sarah Jessica Parker. Click image to expand.
Matthew Broderick and Sarah Jessica Parker

A surrogate mother gave birth to twin girls for actors Matthew Broderick and Sarah Jessica Parker in Ohio on Monday. The celebrity parents are ready to take the newborns home and leave the birth mother in the Rust Belt. Does the surrogate have any rights now that the children are born?

Not if they used Parker's eggs. Surrogate mothers who are not genetically related to the child have had little success in obtaining any kind of parental rights. But surrogacy is an enormously complicated and unsettled area of law, and different states take different approaches. In surrogacy-friendly states, like Ohio and California, a judge issues an order, either before or immediately after the delivery, recognizing the genetic parents as the legal guardians, and directs the hospital to do the same. As part of the process, the surrogate normally waives any right to contest custody. In other states, the intended mother may have to go through an adoption procedure. Still, as long as the surrogate is onboard, any state will eventually grant custody to the intended parents. Once legal parenthood is established, the surrogate has no legal relationship to the child—not even visitation rights.

Advertisement

In the event of a renegade surrogate or divorce of the intended parents, things can get very messy. This is where planning is important. If possible, couples should never use the surrogate mother's egg, as this arrangement strengthens her claim to parental rights. If the intended mother's eggs aren't viable, smart couples use a third-party egg donor. Second, choice of state is crucial. Surrogacy is actually a crime in Arizona (although the law has not been enforced), and some states, like North Dakota, don't recognize surrogacy agreements at all. In these states, if the intended parents divorce and start bickering over custody, the surrogacy contract is worthless, and family-law statutes come into play. Depending on the jurisdiction, courts may then simply presume that the birth mother is the legal mother—and her husband the father—and it's up to the intended parents to overcome that presumption in a lengthy court battle while the birth mother raises the child.

The surrogacy contract, often around 40 pages, governs much more than just custody. It requires in-depth psychological testing of the mother to make sure she is emotionally prepared to carry out her duties (including giving up the baby) as well as STD tests and other physical exams. Once the pregnancy commences, the contract can dictate many aspects of the surrogate's life. Drinking, smoking, and risky behaviors like skydiving are invariably prohibited. The contract can also require the surrogate to eat a generically healthy diet, or it can go so far as to mandate an organic-only diet.

Then there are the stickier issues: money and abortion. The intended parents pay all medical expenses if the surrogate's insurer balks. They also send a monthly check to the surrogate to cover expenses like vitamins and trips to the doctor as well as the agreed-upon compensation. The going rate is between $20,000 and $30,000 spread over the course of the pregnancy. (In the event of a miscarriage, the surrogate usually keeps what she has received by the time of the termination.) The contract will also dictate whether an abortion is in order should testing reveal certain problems with the fetus. Similarly, the mother may be required to have an abortion in the event of multiple fetuses—a common event in surrogacy. But the contract may be worthless paper in this sensitive area. It is highly unlikely that a court would force a woman to have an abortion, and there is no case law on what happens if the surrogate refuses to carry the baby to term even though the contract requires it.

Got a question about today's news? Ask the Explainer.

Explainer thanks Theresa Erickson of Erickson Law and Thomas Pinkerton of the National Fertility Law Center.

TODAY IN SLATE

Politics

Talking White

Black people’s disdain for “proper English” and academic achievement is a myth.

Alabama’s Insane New Abortion Law Gives Fetuses Lawyers and Puts Teenage Girls on Trial

Tattoo Parlors Have Become a Great Investment

A Jaw-Dropping Political Ad Aimed at Young Women, Apparently

The XX Factor
Oct. 1 2014 4:05 PM Today in GOP Outreach to Women: You Broads Like Wedding Dresses, Right?

Big Problems With the Secret Service Were Reported Last Year. Nobody Cared.

Crime

Operation Backbone

How White Boy Rick, a legendary Detroit cocaine dealer, helped the FBI uncover brazen police corruption.

Hong Kong’s Protesters Are Ridiculously Polite. That’s What Scares Beijing So Much.

This Gargantuan Wind Farm in Wyoming Would Be the Hoover Dam of the 21st Century

Moneybox
Oct. 1 2014 8:34 AM This Gargantuan Wind Farm in Wyoming Would Be the Hoover Dam of the 21st Century To undertake a massively ambitious energy project, you don’t need the government anymore.
  News & Politics
Politics
Oct. 2 2014 11:01 AM It Wasn’t a Secret A 2013 inspector general report detailed all of the Secret Service’s problems. Nobody cared.
  Business
Moneybox
Oct. 2 2014 12:58 PM Why Can’t States Do More to Protect Patients From Surprise Medical Bills? It’s complicated.
  Life
Lexicon Valley
Oct. 2 2014 1:05 PM What's Wrong With "America's Ugliest Accent"
  Double X
The XX Factor
Oct. 2 2014 12:37 PM St. Louis Study Confirms That IUDs Are the Key to Lowering Teen Pregnancy Rates
  Slate Plus
Behind the Scenes
Oct. 1 2014 3:24 PM Revelry (and Business) at Mohonk Photos and highlights from Slate’s annual retreat.
  Arts
Brow Beat
Oct. 2 2014 1:29 PM Want to Know What Makes David Fincher Great? Focus on What He Doesn’t Do.
  Technology
Future Tense
Oct. 2 2014 1:22 PM If Someone Secretly Controlled What You Say, Would You Notice? What cyranoid experiments reveal about how people act.  
  Health & Science
Science
Oct. 2 2014 12:53 PM The Panic Virus How public health officials are keeping Americans calm about the Ebola threat.
  Sports
Sports Nut
Oct. 1 2014 5:19 PM Bunt-a-Palooza! How bad was the Kansas City Royals’ bunt-all-the-time strategy in the American League wild-card game?