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Can a Surrogate Mother Change Her Mind and Keep The Baby?

The Marble Team

Can a Surrogate Mother Change Her Mind and Keep The Baby?

Family Law
| 5 min
5 minutes

Carrying a baby for nine months and then handing the newborn child over to surrogate parents is one of the most unique and selfless acts a woman can do. But what if the surrogate mother decides that, having given birth, she can’t let go of the child? What happens then?

For childless couples who’ve signed up for the surrogacy process, it’s the worst possible scenario. The cherished dream of becoming parents turns into a nightmare. However, legally, is the birth mother allowed to change her mind? Or does the contract she signed mean that she has no right to hold on to the child?

Surrogacy law is complex and intricate, but it does at least anticipate and rule on this scenario. So read on for a clear and understandable explanation of what the law says about surrogate mothers who change their minds and say they want to keep the baby.


A Surrogate Mother Has Rights, But Not To Keep The Child

There’s little in life that’s more precious, special, and incredible than the birth of a new child. The arrival of a new life is nothing short of a miracle. Little wonder, then, that legislators took - and continue to take - such care around the laws on surrogacy.

Given its life-changing impact, it’s perhaps surprising to learn that there are no federal laws on surrogacy. Instead, legislation is set on a state-by-state basis. That means it’s vital for you to check out the law where you live and ensure you know exactly where you stand. There are significant and fundamental differences in surrogacy laws across the 50 states, plus those laws are changing all the time.

With surrogacy, all the parties involved have certain rights. However, from a legal perspective, when the mother signs the surrogacy agreement, she’s essentially signing away her right to keep the child. So if she changes her mind and decides post-birth that she wants to keep the baby, legally she’s in the wrong.


The Two Types of Surrogacy

There are two different types of surrogacy:

Through a more traditional surrogacy process, a surrogate is the actual biological mother. The biological mother’s egg is fertilized via intrauterine insemination using donated sperm or sperm from the intended father.

By contrast, for gestational surrogacy, where the surrogate isn’t the biological mother, the egg is fertilized in vitro before being implanted. The egg and sperm may be from the intended parents or donors or a combination of both.

One of your first decisions with surrogacy is to choose which type works best for you. Your choice can also have implications further down the line. For example, if you choose gestational surrogacy and are the biological parents, it may make the formal adoption process more straightforward.

How To Protect Yourself During The Process of Surrogacy

Given the magnitude and ramifications of surrogacy, it’s quite fitting that there are stringent guidelines, rules, and regulations that all sides must follow. Before intending parents reach the initial stage of fertilization, there are all sorts of decisions to make: which type of surrogacy is right for you, the choice of a surrogate mother, financial considerations, the state where the mother resides, and much more.

You should always take the greatest care when choosing your surrogate mother. You may decide that it’s better to use an agency to advise you and help you make your choice. For legal, practical, and financial reasons, you may choose a mother who lives in your state or a nearby surrogate-friendly state rather than a mother who lives abroad.

You can protect yourself by doing your homework, preparing well, and keeping good lines of communication open with all the different parties. Even if a close family member is your surrogate, it’s always best to write everything down and not leave anything to chance. 


A Paper Trail Is The Best Form of Prevention

This might sound like an obvious thing to say, but by keeping a meticulous record of all stages of the process, you can often anticipate or prevent any issues. If what you agreed to is written down, it makes it easier to resolve any problems that might subsequently arise.


Stay In The Loop

You may think that once you’ve signed your legal contract, you just sit back and wait for nature to take its course. But that’s not how surrogacy works. Once the first trimester has passed, your attorney will start the process of registering you both as legal parents. This step is called the pre-birth order.

At all times, it’s essential to keep everyone in the loop - not just your surrogate mother but also your attorney and any other parties involved, such as an agency or the hospital.


Communicate Regularly With Your Surrogate

Of all the people to keep in your loop, your surrogate is the most important, so make sure you’re regularly in touch with them. When the mother knows you well and trusts you, it helps to smooth the handover process.


How A Family Lawyer Can Help

A surrogacy agreement is a considerable investment, both emotionally and financially. Working with an experienced lawyer helps ensure that your investment is protected, particularly concerning receiving your surrogate child.


Bottom Line

Sometimes a surrogate mother does change her mind and say that she wants to keep the baby. As intending parents, you can help avoid this traumatic scenario by preparing well, maintaining contact with your surrogate throughout the pregnancy, and using a family lawyer to certify that every part of your surrogacy agreement is in order. If there are issues after the birth, an attorney can also help ensure that your legal contract is honored and you receive your baby.


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