IVF and Surrgogacy: What Should You Know About Your Legal Rights To Your Child

If you and your partner are going through fertility treatments to help conceive a child -- whether in vitro fertilization (IVF), sperm or egg donation, or surrogacy -- you may be wondering about the legal and emotional ramifications of your decision to use reproductive assistance. While married couples who conceive a child without the use of fertility treatments have no doubt that each partner has equal legal and physical rights to the child they've created, those who use surrogates to carry the pregnancy to term and/or who aren't biologically related to the child (but whose partners are) may later face legal battles if one of these relationships goes south. Read on to learn more about the legal rights you have if you and your child aren't connected by blood.

What rights do you have if your partner gives birth to a child not biologically your own?

With the leaps and strides in fertility technology made during recent years, laws governing these processes have lagged behind a bit. However, most states have attempted to clarify existing laws in ways that ensure each child is given the opportunity to have two loving, legal parents. 

In nearly all states, a child is born to a married couple is deemed a child of the marriage, and both spouses are considered legal parents. There are some exceptions to this -- for example, a married woman serving as a surrogate for another couple's biological child -- but in most cases, if your spouse gives birth to a child conceived using donor sperm (or if you give birth to a child conceived with your husband's sperm and another woman's egg), you'll be considered this child's legal parent without further action on your part. 

If you're not married to your partner when your child is born and you have no genetic ties to this child, you may face a tougher path. In this situation, you'll need to formally adopt this child in order to gain legal rights. If you and your partner separate before this adoption is finalized, it's possible a judge may decline to award you visitation rights. Now that same-sex marriage is legal throughout the U.S., it can be worthwhile to marry your partner before your child is born to ensure that your rights are retained.

What are your rights when it comes to a surrogate pregnancy?

Surrogacy agreements have been the topic of litigation for more than three decades. The first U.S. court ruling on traditional surrogacy (the use of the biological father's sperm and the surrogate's egg) found that the surrogacy agreement was invalid and that both the surrogate and the biological father were the legal parents of the resulting child. Although custody was awarded to the biological father and his wife, this wife had no legal rights until the child turned 18 and sought to be formally adopted by the woman who had raised her as a mother since birth.

Since that time, most states have put laws into place designed to protect the rights of parents who enter into a surrogacy contract. In addition, with the advances made in in vitro fertilization, many surrogates are now able to use embryos containing genetic material of both parents (technology that was relatively ineffective and prohibitively expensive at the time the Baby M case was decided). 

However, if you're considering a surrogate pregnancy, it's important to seek experienced legal counsel before entering into this arrangement. Failure to plan ahead for contingencies and potential complications can sometimes result in heartbreak or expensive litigation. For example, if the surrogate suffers health problems during the pregnancy, can he or she elect to terminate the pregnancy without your consent? What can you do if you suspect the surrogate is engaging in behaviors that pose a great risk of harm to your unborn child (like smoking or drinking to excess)? Having a written and formally executed plan for handling these disagreements can improve the odds that you and your spouse will bring home a healthy, happy child. Reach out to a local family lawyer, like one at a place like Karp Law Offices, for more information.