What Happens if a Surrogate Mother Wants to Keep the Baby

Surrogate mother keeping the baby is a rare scenario, but possible.

During my 10 years of the surrogacy domain experience, I got numerous inquiries from the intended parents, where they fear a situation where surrogate wants to keep the baby.  But the data shows that more parents abandon the baby than the surrogate wants to keep the baby. So, the fear of would-be parents is genuine, but the possibility of having this is much less than you think! In this article, we will discuss what if surrogate wants to keep the baby?

Gestational surrogacy is a procedure where a surrogate carries the child for the intended parents. Commercial Surrogacy is allowed in few countries only. In most cases, surrogacy can be a hassle-free experience, but there might arise some of the exceptions like the intended parents do not want the baby, or the surrogate wants to keep the baby to her own.

The most prevalent fear among the intended parents is — what happens if the surrogate changes her mind and keeps the child with herself. Although such cases are rare, they might happen!

If happen, such a case will differ from country to country and need to be handled individually.

What if surrogate wants to keep the baby?

England and Wales:

Read more about surrogacy in the UK

In England and Wales, or to precise in all of the UK, the birth mother has a legal right over the child. Not only the birth mother but also her civil partner have a right over the child born with the help of surrogacy, even both of them are not genetically related to the surrogacy child.

In the case of no dispute, the intended parents need to acquire the parentage of the child by applying for a parental order. However, surrogate consent is required as well. If there is no consent of the surrogate mother, the court will still give the custody of the child to the intended parents but it can take time and a long process to recognize them as the legal parents.

In case the surrogate decides to keep the baby to herself, there are few things to do like establish the legal parentage of the intended parents.

Single surrogate – The biological father of the child will be named on the birth certificate of the child and therefore will be the child's legal father with parental responsibility.

Married Surrogate – The surrogate's husband is the legal father of the child; this will lead the intended parents in a vacuum.  So, the bottom line is using a single surrogate mother to keep things to less complicated.

Surrogate in a civil partnership – The civil partner will be regarded as the legal father of the child, and the same rules will apply as if the surrogate is married.

Surrogate has a long-term partner – The partner of the surrogate cannot be regarded as the legal father of the child. Hence, the name of the intended father will appear on the birth certificate and will be regarded as the legal father of the child with parental responsibilities.

Applying for parental rights requires six to nine months. And if the surrogate and her partner do not give the consent, then the application will be failed. Consent has to be given at least six weeks after the child is born to the surrogate.

And what if the surrogate refuses to provide the consent of the child. Don't worry; nothing is lost. The intended parents can apply for the child's parental order in a higher court. In this situation, the court will intervene and make a checklist of a few things known as checklist welfare.

This checklist will include the following –

• The child's physical, educational, and emotional needs.
• Any other characteristic that the court considers relevant example the age and background of both the families.
• The ability of the intended parents and the surrogate, along with her partner to meet the child's needs.

Many intended parents have a feeling that the law is loaded against them, but in reality, the child usually ends up with the legal parents. Therefore, in the UK, you need to go to fight in court for the child's custody.

In a recent case, the British court ruled in favor of the gay couple who have gone through the process of surrogacy, but the surrogate wanted to keep the child. However, the court ordered that the baby should be with the gay couples who arranged surrogate to have the baby.

Read more about it: https://www.telegraph.co.uk/news/2017/11/17/surrogate-mother-changed-mind-giving-baby-must-hand-child-gay/

According to Andrew Vorzeimer, it is unlikely that the surrogate will change her mind. It is the intended parents otherwise who change their minds to abandon the child. He is a law specialist and keeping track of the ART techniques since 1979. From over 148000 surrogate deliveries, only 13 gestational surrogates and 25 traditional surrogates have sought to change their minds. On the other hand, 89 intended parents have changed their minds to abandon the baby.

More resources on this topic

Legal surrogacy countries

Is a surrogate mother genetically related to the baby?

Australia:

In Australia, only altruistic surrogacy is allowed. That means that the intended parents do not need to pay out of the pocket to the surrogate.

But here in Australia as well, the birth certificate of the child will have the name of the surrogate and her legal partner as the legal parent of the child.

That may feel surreal to most of the surrogates and their legal partners. To change the legal parentage to the name of the intended parents, the intended parents need to apply for a parentage order. The parentage order means to transfer the name of the intended parents as the legal parents of the child. After this, a fresh birth certificate is issued with the name of the intended parents on the birth certificate.

But, what if the surrogate wants to keep the child to her own. In Australia, the surrogacy arrangements are not enforceable. At birth, the surrogate and her partner are the legal parents of the child. If the surrogate decides to keep the baby to herself, there is nothing that can intend parents can do apart from seeking legal help. The intended parents can do nothing to enforce the surrogacy agreement.

After the case goes to the family court, the court will have the authority to govern who will be the legal parent of the child. The order of the court would be based upon the best of the baby's interest. That will not be based on the surrogacy agreement. This is because you cannot have a contract on a baby or a woman's body. However, the chance of surrogate keeping the baby with herself is much less.

Steps to safeguard the intended parents' rights to avoid the case where surrogate wants to keep the baby.

Each surrogacy case is unique and needs to be handled accordingly.  The percentage of a surrogate mother wanting to keep the surrogacy baby is much less than what you think.

Still, parents need to take appreciate steps to safeguard their rights.

• Do surrogacy arrangements in a country where there are explicit surrogacy laws like Ukraine, Georgia, USA, and Russia. Never be lured by the surrogacy agencies which offer low-cost surrogacy at the cost of higher legal risks. In countries like Kenya surrogacy is offered by few agents that have a lower cost but higher risks.
• Always consult legal expertise in your country about the surrogacy laws in your nation and how you can have the legal parentage of the baby. It is a good idea to consult a local surrogacy lawyer in a surrogacy country as they have vast experience in handling such cases.
• If your country is specific about the parental order or court order to get the legal parentage of the baby, then always choose a single surrogate mother. In the UK, the intended parents are advised to use the single surrogate mother no matter which surrogacy country they choose as it will help intended parents to have full legal rights of the baby.
• Always work with experienced and credible surrogacy agents who can educate, guide, and support you in difficult times. Someone who has intended parents' interest in mind than financial gain.

What happens if a surrogate mother wants an abortion during the pregnancy?

Such cases are much rare but still, would-be parents need to discuss this option with their surrogacy agency.  They also need to confirm the terms and conditions around the medical termination of the fetus in case of serious congenital abnormality. Usually, such terms are mentioned in the surrogacy agreement.

Conclusion

The chance of changing the mind of the intended parent five times more than the surrogate will change her mind. The famous case of baby Gammy in 2014 in Thailand was much in the news when Australian couples left their biological baby due to down syndrome.

Read more about baby Gammy case: https://www.abc.net.au/news/2016-04-14/baby-gammy-twin-must-remain-with-family-wa-court-rules/7326196

Similarly, recently we came across a surrogacy case in Ukraine, where American intended parents left the baby Bridget due to the critical illness of the baby.

More about baby Bridget case: https://www.abc.net.au/news/2019-08-20/ukraines-commercial-surrogacy-industry-leaves-disaster/11417388

However, even if she changes her mind and decides to keep the baby, the intended parents can anyway seek legal help.

The best protection for the intended parents is to do surrogacy in a country where surrogacy is legal and they are considered the legal parents of the baby right from the conceptions.  If you wish to know such affordable yet legal surrogacy countries, these are Ukraine and Georiga:

Surrogacy in Ukraine

Surrogacy in Georgia

If you'd like to learn more about IVF, Egg Donation, or surrogacy services globally, check out the rest of our website at IVF Conceptions. We offer legally secure and affordable surrogacy consulting services for FREE.

What Happens if a Surrogate Mother Wants to Keep the Baby

Source: https://www.ivfconceptions.com/surrogate-wants-to-keep-the-baby/

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