Assistive reproductive technology (ART) has provided many hopeful parents with the ability to grow their families. However, it is an emotional journey filled with happiness and sorrow.

One of the most heartbreaking scenarios occurs when a surrogate mother changes her mind. For many intended parents, it’s a nightmare situation that can leave them wondering if they have any legal recourse. 

Traditional versus gestational surrogacy

When determining legal rights and responsibilities in ART, Minnesota’s courts view traditional and gestational surrogacies differently. In traditional surrogacy, the surrogate’s own egg is fertilized with sperm from the intended father or donor. Therefore, the surrogate is the biological mother of the child. Because of this genetic relationship, the mother has legal parental rights at birth. If she changes her mind about the surrogacy, the courts are more likely to rule in her favor.

In a gestational surrogacy, the embryo is made using the egg and sperm of the intended parents or donors, which is then implanted in the surrogate’s uterus. The surrogate mother has no genetic link to the baby; she is simply carrying the pregnancy.

Gestational surrogacy offers a higher level of legal security for intended parents. Most courts are more willing to issue pre-birth parentage orders, declaring them as the legal parents. However, it’s important to note that the outcome and enforcement aren’t always guaranteed, especially if no pre-birth parentage orders are obtained. 

Minnesota is generally considered to be an ART-friendly state. Lawmakers have proposed legislation that would provide more clarity regarding gestational surrogacy contracts, the rights of the intended parents and surrogates, compensation requirements and parentage. Until that becomes law, intended parents can take steps to protect themselves:

  • Have a detailed contract that establishes both parties’ expectations, obligations, financial responsibilities, medical decision roles and surrender of custody.
  • Have a pre-birth parentage order, which is a court order that declares who the legal parents will be before the baby is born.
  • Contract provisions stating that the surrogate agrees to surrender custody upon birth
  • Clauses that specifically spell out what happens if either party terminates the contract

To minimize the risk that a surrogate might change her mind, you should work with someone with reproductive law experience. They can provide the necessary guidance and support to ensure you have a strong legal foundation as you begin the journey to build your family.