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Surrogacy and Fertility Issues for Military Families

Military Families are among the millions of Americans who face fertility and reproductive issues.  These issues may involve the potential father, the potential mother, or both intended parents.  In years past couples who realized fertility difficulties had few options other than to seek adoption.  While adoption is very fulfilling and a wonderful solution for infertile couples, modern science and medicine now allow those fertility challenged to have a child and to participate in the birth process from conception.   More importantly, medical advances also allow fertility challenged  couples to have children that are biologically linked/related to one or both members of the couple through surrogacy.  
    
Surrogacy is simply the interaction between intended parents who desire to have a child but cannot without assistance, and a woman who acts as the surrogate to assist the intended parents in having a child.   The parties desiring to have a child are generally deemed intended parents (“IP”), because they are the people that will ultimately be the parents and legal guardians of the child that is produced through the surrogacy.  There are two basic types of surrogacy relationships: "Traditional Surrogacy" and "Gestational Surrogacy." 

Depending upon the type of surrogacy undertaken, the child will be the biological child of the intended parents and eligible for all military benefits eligible to military dependents, or a civilian adoption proceeding must take place making the child the legal child of the military  intended parents. 

In a Traditional Surrogacy the child born of the relationship is the biological child of the surrogate mother and the intended father.  As such, the surrogate’s own biological egg is utilized to produce a child.  In this scenario the surrogate mother becomes pregnant through artificial insemination of her egg. The sperm used to fertilize the surrogate’s egg is generally provided by the intended father but may also come from a donor  As the biological mother of the child, the surrogate is genetically related to the child. 

By contrast, in a Gestational Surrogacy the biological egg of the intended mother is used instead of the egg of the surrogate.  The egg of the intended parent is fertilized with the semen of the intended father or a donor and then implanted in the surrogate through in vitro fertilization and a transfer procedure.  The baby born of the relationship is the biological child only of the intended parents and has no genetic link to the surrogate mother.  Gestational surrogacy is presently the most popular type of surrogacy as it involves a genetic link to both intended parents.

If you are considering surrogacy as either an Intended Parent, or as a potential Surrogate mother there are numerous legal issues that must be addressed.   Such issues are largely controlled by the law of the state in which the child will be born and the laws in the state in which the child will live once he or she comes home with the intended parents.  These issues are addressed in a surrogate contract between the intended parties and the surrogate.   The compensation of the surrogate is also addressed in the contract as well as all terms and conditions of the surrogacy.

Depending upon the specific state's law in issue and whether the surrogacy relationship is a traditional surrogacy or a gestational surrogacy, an adoption of the child along with termination of the surrogate's parental rights may or may not be necessary.   As the surrogate arrangement invokes complex issues falling under the parties' constitutionally protected parental and reproductive rights it is further essential that legal representation be obtained; and, that the specific laws of your state and the state of the surrogate  be consulted as the laws vary widely from state to state on enforcement of surrogate contracts, and even the legality of a surrogate contract.  The below chart provides a general overview of the positions of various states as to surrogacy agreements.  While it is  informative it should not be relied upon without consultation with a licensed attorney in each specific state.

As surrogate Mothers provide an extraordinary service for the intended parents, most surrogacy contracts also have built in safe-guards for the surrogate to ensure her compensation; to ensure that she does not realize any costs or expenses that are not paid for by the intended parents; and, other benefits such as health care and insurance during the pregnancy, life insurance and living expenses.  However, each surrogacy relationship is different and the terms and specifics of the relationship can be as complex or simple as the parties desire.

However, surrogacy relationships are complex as the purpose of the contract and relationship is to create a baby and to facilitate that child becoming the legal child of the intended parents.  As such, an attorney experienced in surrogacy law is essential to a surrogacy relationship to navigate the parties through the numerous legal pitfalls and issues.

BNWP&M are proud to represent both Intended Parents and  Surrogate Mothers.  If you are considering being a surrogate or entering into a surrogate relationship, we welcome the opportunity to discuss your needs and address any questions you may have regarding surrogacy, the surrogacy relationship and surrogacy contracts, as well as any adoption needed in conjunction with a surrogacy.