What If the Surrogate Wants To Keep The Baby?

A surrogate mother keeping the baby is a rare scenario, but possible.

During my 10 years of the surrogacy domain experience, I got numerous inquiries from the intended parents, who fear a situation where the surrogate wants to keep the baby.  But the data shows that more parents abandon the baby than the surrogate wants to keep the baby. So, the fear of would-be parents is genuine, but the possibility of having this is much less than you think! In this article, we will discuss what if a surrogate wants to keep the baby.

Gestational surrogacy is a procedure where a surrogate carries the child for the intended parents. Commercial Surrogacy is allowed in a few countries only. In most cases, surrogacy can be a hassle-free experience, but there might arise some the exceptions like the intended parents do not want the baby, or the surrogate wanting to keep the baby to her own.

The most prevalent fear among the intended parents is — what happens if the surrogate changes her mind and keeps the child by herself. Although such cases are rare, they might happen!

If this happens, such a case will differ from country to country and need to be handled individually.

Understanding Legal Jurisdictions and Their Impact on Surrogacy

The rights of the surrogate mother vary depending on the legal framework of the country or state where the baby is born. It’s essential to choose a jurisdiction that is friendly towards surrogacy and has laws in place to enforce the terms of your surrogacy agreement. This careful selection significantly reduces the chances of any legal complications arising.

1. Surrogacy in Supportive Legal Frameworks: In countries or states where legislation upholds the validity of surrogacy contracts, the surrogate mother has limited legal options to claim parental rights. These legal systems provide strong protections for both the intended parents and the surrogate.
2. Surrogacy in Countries without a Legal Framework: In jurisdictions without a proper legal framework for surrogacy, the surrogate mother is considered the legal parent when the baby is born. In such cases, she can make a claim to retain those parental rights. It is crucial to be aware of the legal landscape and potential risks associated with pursuing surrogacy in these countries.
3. Surrogacy in Countries with Antiquated Laws: Some countries may have a legal framework for surrogacy, but their laws may be outdated or incomplete. In such cases, there is a possibility that the surrogate could try to claim parental rights. However, the chances of success depend on the specific circumstances and the legal interpretation of the court. For example, in the United Kingdom, surrogate mothers have been granted some rights, although not necessarily full custody.
4. Independent Surrogacy Journey without Legal Guidance: If you choose to pursue an independent surrogacy journey without the involvement of an experienced agency or legal counsel, the surrogate may have grounds to make a claim to keep the baby. In these cases, the lack of proper legal documentation and protections could put your parental rights at risk. It is strongly advised to consult with a lawyer before proceeding with an independent surrogacy arrangement.

Addressing Concerns about Surrogates Keeping the Baby

The idea of a surrogate mother trying to keep the baby can be a source of anxiety for the intended parents. However, it is important to understand that the likelihood of such an event is incredibly low, even in the least favorable legal jurisdictions. Surrogates have their own families and typically become surrogates to help provide for their loved ones. Their primary concern is not retaining the baby but rather the fear of the intended parents abandoning the child.

To further address this hypothetical risk, let’s consider the protective measures that can be taken:

#1. Pre-birth and Post-birth Parental Orders

In the United States, where pre-birth and post-birth parental orders are available in many states, intended parents are well-protected. States like California, Nevada, Illinois, and Maine offer some of the safest legal environments for surrogacy. These orders, issued either during pregnancy or in the days following the birth, establish the intended parents’ legal rights and significantly limit any potential disputes.

It’s worth noting that there are legal distinctions between traditional surrogacy (where the surrogate’s egg is used) and gestational surrogacy (where there is no genetic relationship between the surrogate and the baby). Opting for gestational surrogacy and using an egg donor separate from the surrogate can provide an added layer of protection.

#2. Legal Processes in Other Countries

Even outside the United States, similar rules and safeguards apply. Some countries have explicit legislation supporting commercial surrogacy, such as Ukraine, Greece, Georgia, and certain U.S. states. In these jurisdictions, the validity of the surrogacy contract is recognized, providing clear legal rights to the intended parents.

In other countries, the legal parentage of the intended parents may only be determined after the baby’s birth. The surrogate is initially listed as the legal mother on the birth certificate, and a court process is required to amend the birth certificate and establish the parental rights of the intended parents. While this process can take time, working with legal professionals experienced in surrogacy law ensures that your rights are protected.

#3. Safeguards to Protect Your Family

To further protect yourself from any potential claims by the surrogate, we recommend the following safeguards:

• Work with an Experienced Agency: Collaborating with an agency that specializes in finding and screening surrogates and overseeing the entire surrogacy journey is highly recommended. A reputable agency ensures that the surrogate understands her legal obligations and manages the process effectively.
• Engage a Surrogacy Coordinator: If you choose not to work with an agency, hiring a surrogacy coordinator with experience in managing surrogates can be invaluable. This coordinator acts as a liaison, identifying and resolving any issues before they escalate.
• Psychological Evaluation of Surrogate Candidates: Request that all surrogate candidates undergo a comprehensive psychological evaluation conducted by a professional therapist experienced in assessing their ability to emotionally let go of the baby. Many surrogacy clinics already include this evaluation as part of their screening process.
• Build a Strong Relationship: If you decide to pursue an independent surrogacy journey, maintaining a close and friendly relationship with the surrogate is essential. A positive and trusting bond encourages her commitment to fulfilling her role and willingly relinquishing parental rights.
• Draft a Professionally Executed Contract: The most critical safeguard is to have a professionally drafted and executed contract with the surrogate. This contract should explicitly outline the surrogate’s intentions, her rights (if any) after the birth, compensation terms, and your obligations towards her. Adhering to the terms of this agreement demonstrates your commitment to the process and minimizes the potential for disputes.

Identifying Safe Surrogacy Destinations

When considering international surrogacy options, it’s crucial to choose a destination with explicit legislation supporting commercial surrogacy and recognizing the validity of surrogacy contracts. Some recommended destinations include Ukraine, Greece, Georgia, and select U.S. states like California, Nevada, Maine, and Illinois.

Conversely, certain countries lack a legal framework for surrogacy or have antiquated laws that can expose intended parents to significant risks. These countries include Kenya, Cyprus, Guatemala, and others. It is advisable to avoid these destinations as they do not provide sufficient legal protections for your parental rights.

What if the surrogate wants to keep the baby?

England and Wales:

Read more about surrogacy in the UK

In England and Wales, or to be precise in all of the UK, the birth mother has a legal right over the child. Not only the birth mother but also her civil partner have a right over the child born with the help of surrogacy, even if both of them are not genetically related to the surrogacy child.

In the case of no dispute, the intended parents need to acquire the parentage of the child by applying for a parental order. However, surrogate consent is required as well. If there is no consent of the surrogate mother, the court will still give the custody of the child to the intended parents but it can take time and a long process to recognize them as the legal parents.

In case the surrogate decides to keep the baby to herself, there are few things to do like establish the legal parentage of the intended parents.

Single surrogate – The biological father of the child will be named on the birth certificate of the child and therefore will be the child’s legal father with parental responsibility.

Married Surrogate – The surrogate’s husband is the legal father of the child; this will lead the intended parents in a vacuum.  So, the bottom line is using a single surrogate mother to keep things less complicated.

Surrogate in a civil partnership – The civil partner will be regarded as the legal father of the child, and the same rules will apply as if the surrogate is married.

The surrogate has a long-term partner – The partner of the surrogate cannot be regarded as the legal father of the child. Hence, the name of the intended father will appear on the birth certificate and will be regarded as the legal father of the child with parental responsibilities.

Applying for parental rights requires six to nine months. And if the surrogate and her partner do not give consent, then the application will be failed. Consent has to be given at least six weeks after the child is born to the surrogate.

And what if the surrogate refuses to provide the consent of the child? Don’t worry; nothing is lost. The intended parents can apply for the child’s parental order in a higher court. In this situation, the court will intervene and make a checklist of a few things known as checklist welfare.

This checklist will include the following –

• The child’s physical, educational, and emotional needs.
• Any other characteristic that the court considers relevant example the age and background of both the families.
• The ability of the intended parents and the surrogate, along with her partner to meet the child’s needs.

Many intended parents have a feeling that the law is loaded against them, but in reality, the child usually ends up with legal parents. Therefore, in the UK, you need to go to fight in court for the child’s custody.

In a recent case, the British court ruled in favor of a gay couple who have gone through the process of surrogacy, but the surrogate wanted to keep the child. However, the court ordered that the baby should be with the gay couple who arranged for surrogates to have the baby.

Read more about it: https://www.telegraph.co.uk/news/2017/11/17/surrogate-mother-changed-mind-giving-baby-must-hand-child-gay/

According to Andrew Vorzeimer, it is unlikely that the surrogate will change her mind. It is the intended parents otherwise who change their minds to abandon the child. He is a law specialist and keeping track of ART techniques since 1979. From over 148000 surrogate deliveries, only 13 gestational surrogates and 25 traditional surrogates have sought to change their minds. On the other hand, 89 intended parents have changed their minds to abandon the baby.

More resources on this topic

Legal surrogacy countries  

Is a surrogate mother genetically related to the baby?

Australia:

In Australia, only altruistic surrogacy is allowed. That means that the intended parents do not need to pay out of pocket to the surrogate.

But here in Australia as well, the birth certificate of the child will have the name of the surrogate and her legal partner as the legal parent of the child.

That may feel surreal to most of the surrogates and their legal partners. To change the legal parentage to the name of the intended parents, the intended parents need to apply for a parentage order. The parentage order means to transfer the name of the intended parents as the legal parents of the child. After this, a fresh birth certificate is issued with the name of the intended parents on the birth certificate.

But, what if the surrogate wants to keep the child on her own? In Australia, surrogacy arrangements are not enforceable. At birth, the surrogate and her partner are the legal parents of the child. If the surrogate decides to keep the baby to herself, there is nothing that can intend parents can do apart from seeking legal help. The intended parents can do nothing to enforce the surrogacy agreement.

After the case goes to the family court, the court will have the authority to govern who will be the legal parent of the child. The order of the court would be based upon the best of the baby’s interest. That will not be based on the surrogacy agreement. This is because you cannot have a contract on a baby or a woman’s body. However, the chance of a surrogate keeping the baby to herself is much less.

Steps to safeguard the intended parents’ rights to avoid the case where the surrogate wants to keep the baby.

First and foremost, it is crucial to emphasize that if you have a properly executed Surrogacy Contract in a country or state with a supportive legal framework, the surrogate cannot keep your baby. The key here is to ensure that you do not cut corners and bypass the legal safeguards that are in place to protect both parties involved.

By working with experienced professionals and legal experts in the field of surrogacy, you can establish a robust legal agreement that upholds the validity of your contract. This legal framework safeguards your parental rights and protects you from potential claims by the surrogate. It also provides the surrogate with the assurance that she will be treated fairly and compensated as agreed upon.

Each surrogacy case is unique and needs to be handled accordingly.  The percentage of a surrogate mother wanting to keep the surrogate baby is much less than you think.

Still, parents need to take appreciative steps to safeguard their rights.

• Do surrogacy arrangements in a country where there are explicit surrogacy laws like Ukraine, Georgia, USA, and Russia. Never be lured by the surrogacy agencies which offer low-cost surrogacy at the cost of higher legal risks. In countries like Kenya surrogacy is offered by a few agents that have a lower cost but higher risks.
• Always consult legal expertise in your country about the surrogacy laws in your nation and how you can have the legal parentage of the baby. It is a good idea to consult a local surrogacy lawyer in a surrogacy country as they have vast experience in handling such cases.
• If your country is specific about the parental order or court order to get the legal parentage of the baby, then always choose a single surrogate mother. In the UK, the intended parents are advised to use a single surrogate mother no matter which surrogacy country they choose as it will help the intended parents to have full legal rights to the baby.
• Always work with experienced and credible surrogacy agents who can educate, guide, and support you in difficult times. Someone who has intended parents’ interest in mind than financial gain.

What happens if a surrogate mother wants an abortion during the pregnancy? 

Such cases are much rare but still, would-be parents need to discuss this option with their surrogacy agency.  They also need to confirm the terms and conditions around the medical termination of the fetus in case of serious congenital abnormalities. Usually, such terms are mentioned in the surrogacy agreement.

Conclusion for What if the surrogate wants to keep the baby

At IVF Conceptions, we understand that the safety and well-being of your family are of utmost importance. We have outlined the potential risks associated with surrogacy and provided practical guidance to ensure a secure and successful surrogacy journey. By working with experienced professionals, adhering to legal requirements, and implementing necessary safeguards, you can protect your family’s future and experience the joy of parenthood through surrogacy.

For further assistance and personalized guidance tailored to your specific circumstances, please don’t hesitate to contact our expert team at IVF Conception. We are dedicated to providing you with the support and knowledge you need to navigate the surrogacy process with confidence.

The chance of changing the mind of the intended parent five times more than the surrogate will change her mind. The famous case of baby Gammy in 2014 in Thailand was much in the news when Australian couples left their biological baby due to Down syndrome.

Read more about baby Gammy’s case: https://www.abc.net.au/news/2016-04-14/baby-gammy-twin-must-remain-with-family-wa-court-rules/7326196

Similarly, recently we came across a surrogacy case in Ukraine, where American intended parents left the baby Bridget due to the critical illness of the baby.

More about baby Bridget’s case: https://www.abc.net.au/news/2019-08-20/ukraines-commercial-surrogacy-industry-leaves-disaster/11417388

However, even if she changes her mind and decides to keep the baby, the intended parents can anyway seek legal help.

The best protection for the intended parents is to do surrogacy in a country where surrogacy is legal and they are considered the legal parents of the baby right from conception.  If you wish to know such affordable yet legal surrogacy countries, these are Ukraine and Georiga:

Surrogacy in Ukraine 

Surrogacy in Georgia 

Surrogacy In Mexico-Everything Intended Parents Need To Know

Surrogacy in Colombia- Everything You Need to Know

If you’d like to learn more about IVF, Egg Donation, or surrogacy services globally, check out the rest of our website at IVF Conceptions. We offer legally secure and affordable surrogacy consulting services for FREE.