If you are a surrogate, you might have wondered, "What if my intended parents no longer want the baby?" Once the surrogate is pregnant, the surrogacy agreement cannot be terminated while she remains pregnant, unless an incurable material breach were to occur where the surrogate is genetic related of the child.
Worst Case Scenarios: Intended Parents Backing Out
Intended parents who enter the surrogacy agreement as a couple can get divorced or separate and then might no longer want the child they intended to raise together. What happens then? Will the surrogate have to be a parent? Our surrogacy contracts make sure to include a section for this scenario. Both parties prior to the embryo transfer will sign the agreement stating the intended parents both will remain parents of the child and the intended parents or an applicable court of law will determine who has custody. This situation happened in a famous California case, In re Marriage of Buzzanca. In Buzzanca, a donated embryo was implanted in the surrogate, the parents then divorced, and the intended father wanted to be found to be not the father. The surrogate also requested that she not be the mother. The court found that both intended parents were the parents because the child was procreated and born as a result of the medical procedure they consented to. Indeed, the court found that the intended father was the father even if the intended mother would assume full custody of the child.
What if there is a medical issue with the fetus and the intended parents do not want the child? Again, the surrogacy agreement as well as state law will speak to what happens regarding whether intended parents can make a decision to terminate the pregnancy and when. In general, regardless of this provision and regardless of birth defects or abnormalities, the intended parents are still required by the surrogacy agreement to complete a parentage action and be adjudged the legal parents.
What if the intended parents run out of money in the middle of the pregnancy or stop payments contrary to the surrogacy agreement because they don’t want the child? This is a possibility in cases without an independent escrow company and why we urge the surrogate to ensure there is an independent and adequately funded escrow account in place. In some states like California, Illinois, and New York, this is actually required by law, especially if there is an agency involved. As long as there is an escrow account in place that is sufficiently funded and the surrogate is not in breach of the agreement, the escrow holder should continue to make payments, even if the intended parents wish to stop the payments.
Another worst scenario would be if the intended parents disappear or pass away after the pregnancy. In this situation, no parentage action would be filed by the intended parents. With respect to death or disability, our surrogacy contracts include an alternative guardian that the intended parents pick out during the negotiation phase and specify they should designate someone in their will to be a guardian. If the intended parents do not file a parentage action, the surrogate can file a parentage action herself and get a judgment that the intended parents are the parents.
One of the keys to every surrogacy arrangement is the gestational surrogacy agreement, a legal contract that clearly outlines and lists the responsibilities of both the intended parents and the surrogate. While the agreement is usually drafted by intended parents and might seem to favor them, the surrogate should have a separate attorney who will represent her vigorously to make sure not only that the contract is fair and what is expected and ensure that in no worst case scenario will intended parents be able to avoid a judgment of parentage. The surrogacy agreement should have a provision that the surrogate’s attorney can seek a parentage judgment if the intended parents do not do so timely and the surrogate’s attorney should be experienced enough to obtain a parentage judgment in the state with or without intended parents' cooperation.
Even if the surrogate breaches the agreement, the intended parents will still be legally responsible for taking custody of the child after its birth, so long as the surrogate is not the biological mother of the baby. While the surrogate may no longer get paid or may be responsible for damages from breach, the intended parents’ responsibility for the child remains intact.
If, after the parentage judgment is granted, the intended parents still do not wish to be the parents of their child, they can place the child for adoption. This is the legal way for intended parents to not be responsible for the child that is born. There are many prospective adoptive parents who would be interested in the adoption of a newborn, even one with disabilities or birth defects. If the intended parents do not pick up the child, the child will be taken by the state or county and placed into foster care.
We have written on the worst case scenario of the surrogate not wanting to give the baby to intended parents. The results for the surrogate’s worst case scenario of being left with the baby is the same as the one for the intended parents. The worst case scenarios are rare and unlikely to happen, however, whether you are an intended parent or surrogate, you should choose counsel who is capable and experienced enough to navigate the situation and can ensure the surrogacy agreement addresses each scenario. The surrogacy lawyers at Tsong Law Group are capable of doing so. Licensed in California, New York, Arizona, Illinois, Washington and Oklahoma and with over 100 five star reviews on all reviewing platforms we are capable attorneys for your surrogacy journey. Contact us now.
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