The Law

Surrogacy laws vary from state to state. It is probably the most widely accepted practice under California State law.

By contrast, Minnesota law does not specifically mention surrogacy. Even the state's adoption laws shy away from the term. The primary stigma relating to surrogacy is them is guided concept that surrogacy means buying and selling children. Currently, there is a bill currently under review in 2003 that would specifically address the surrogacy issue and assisted reproduction (HF792). Although the bill is unlikely to pass, it is a step toward recognition of the surrogacy process in this state.

Even in the current environment surrogacy agreements are possible and practical. Given the lack of uniformity between states and the unsettled nature of the law in Minnesota, however, it is extremely important that surrogacy agreements are carefully drafted to ensure compliance with existing laws. One thing is clear,under current Minnesota law a stepparent adoption is necessary. In essence the surrogate mother by contract voluntarily terminates her parental rights and the intended mother adopts the child.

The Risk

The enforceability of surrogacy contract has yet to be tested. Under adoption laws in Minnesota, the surrogate mother may have a right to invalidate her adoption consent. Although the adoptive (sometimes biological) parents may go to court to seek enforcement of the surrogacy contract, it remains unclear how a court would rule. It could decide using the normal contract law principles or it could decide that such a contract is unenforceable based on adoption laws or public policy.

What Exactly is Surrogacy?

Surrogacy is a form of assisted reproduction and a "surrogate" mother is a woman who bears a child on behalf of other parents. This can happen in one of two ways. First there are typical surrogates - a woman that is artificially inseminated with a father's sperm and reproduces with her own egg.

Second, there is gestational surrogacy where the surrogate mother carriesan embryo comprised of the egg of the biological (intended) mother and the sperm of the biological (intended) father. The surrogates' egg is not used.

This issue becomes more complicated with gestational surrogacy described below. In such cases, the surrogate, while she is the birth mother, is not biologically related to the child.

Surrogate Agreements And Terms

As previously stated, surrogacy agreements must be carefully drafted to comply with existing state law. As a result, it is extremely important for any drafter to becurrent on existing adoptions and surrogacy statutes. In most cases, however, typical surrogate agreements cover a number of issues which may include:

-- The Biological parents' right to be advised of and attend any medical exams and to review any and all medicalrecords of the surrogate (even those not related to the pregnancy).
-- STD testing for parties including the surrogate and biological parents.
-- Medical evaluations of all parties to determine whether there are any genetic risks. (Everyone wants a healthy child).
-- Psychological counseling for the surrogate mother paid by the biological parents.
-- A determination of parental rights or contract for adoption.
-- A confidentiality agreement to prevent public disclosure of this private and sensitive information.
-- Compensation agreements for the surrogate mother (Most often in excess of $10,000).
-- Terms regarding how and when the agreement may beterminated.

For additional information, please contact attorney Maury D. Beaulier at 952.746.2153.