Surrogate Mothers' Rights

Surrogacy contracts, which involve a generally infertile couple employing a surrogate mother to have their child, have a convoluted legal history. Internationally, many countries, like Australia or France, outlaw surrogacy contracts despite a growing market for them. Surrogate mothers' rights, subsequently, vary based on the legal status of surrogacy contracts in the state or country.

Several variations or processes exist to carry out surrogacy. These methods may affect surrogate mothers' rights depending on local laws. Traditional surrogacy involves a surrogate mother being naturally or artificially inseminated with the sperm from the male of the prospective parents. Gestational surrogacy, on the other hand, involves a surrogate mother being artificially implanted with a fertilized embryo. The embryo can be given from either the prospective parents or donors. Clearly, the latter method is more expensive than the former to carry out given the technology required. Surrogate mothers also come in two types: altruistic surrogates, who receive no pay besides money for medical expenses, and commercial surrogates, who are paid an additional fee besides medical expenses incurred.

In states and countries where surrogacy contracts are legal, proper surrogacy contracts leave surrogate mothers with no rights to the child. The prospective parents or parent is not generally required to allow visitation or any other rights generally admitted to biological parents. Frequently, the biological father is granted parenthood on the birth certificate while the mother must adopt the child. To ensure the legality of this arrangement, a lawyer should be consulted before any contracts are signed. In places where surrogacy contracts are not legal, the surrogate mother is generally considered the biological mother, though gestational surrogacy may challenge that notion. However, the Baby M case in New Jersey found surrogacy contracts to be illegal, but still granted adoption rights to the prospective parents since the courts saw it to be in the "best interest of the child."

While altruistic surrogacy is usually permitted in many countries, commercial surrogacy is highly likely to be illegal. Exceptions to this rule do exist in the United States and, notably, India, which legalized the practice in 2002. The legalization and inexpensive nature of commercial surrogacy in India has led the country to develop so-called baby farms. Critics are unsure whether the popularity of commercial surrogacy in India has created economic empowerment for women there, or has simply exploited them for subpar wages. Overall, the issue has led to consternation even from the women's rights movement, and many legislators and judges have refused to address the legality of surrogacy contracts.