Can a Surrogate Keep the Baby?

Can a Surrogate Keep the Baby?

In the past few years, surrogacy has become more popular among couples struggling with infertility. However, many people still have questions about the whole process. 

Often, couples think they won’t be able to keep the baby due to ambiguous legal rights. However, intended parents can learn how to navigate such a scenario by getting familiar with the surrogacy laws. 

Still, the legal surrogacy process is not straightforward. The intended parents must go through several steps to keep the baby. 

So, can a surrogate keep the baby? If you have carried out a surrogacy contract with all the legal work, then the surrogate mother won’t be able to keep the baby.

Let’s find out more about the surrogacy agreement and process to clear out the doubts related to gestational surrogacy. 

Can a Surrogate Mother Decide to Keep the Baby After Giving Birth? 

A surrogate mother wanting to keep the baby is only a hypothetical threat. Furthermore, even the worst legal authorities are unlikely to take such a step. In reality, a surrogate mother doubts whether the intended parents will adopt the child; if not, she’ll be obliged to keep the baby. 

The intended parents also wonder about who will be the child’s legal parents. It all depends on the state laws, which differ from state to state. Many laws that still recognize the surrogate as a birth mother are outdated. However, this can still raise issues for the intended parents, who might not get authority over their child.

To protect parental rights, intended parents and their legal representatives must take a few measures. Intended parents and surrogate mothers must sign orders allocating a percentage each at either the pre or post-birth order. 

  • Pre-Birth Order

Many states will let the intended parent initiate a percentage of rights over the unborn baby. This is called a pre-birth order (legal contract). Generally, the lawyer will collect specific legal documents to sign a pre-birth order. Intended parents and surrogates will sign the statements of the percentage for the expected baby. Furthermore, the doctor at the hospital will produce an affidavit mentioning they have made the embryonic transfer for a gestational carrier. 

The lawyer may also have to give in other social documents and evaluations assembled during the surrogacy process. 

Pre-birth order is generally documented during the seventh month of pregnancy. However, it can be signed as early as the fourth month, depending on the state laws.  

Once you file the order, the law will acknowledge your parental rights, and you will be:

  1. Needed to list on the baby’s birth certificate.
  2. Permitted to make medical decisions for your baby.
  3. Assisted in solving insurance coverage problems.
  4. Permitted to acquire your child from the birth mother and discharge from the hospital.
  • Post-Birth Order

Many states might not allow pre-birth orders and require you to wait until the child is born. This is called post-birth order. Some state laws prohibit intended parents from signing the order to gain some rights before the baby is born. Surrogacy in these states may be an ordeal, but not impossible. 

Intended parents can file these orders three to five days after the child is born. In this case, the intended parents must show up at the court after childbirth. The court process is more of a formality; the hearing will go smoothly if both parties agree on the same terms. 

Surrogate Baby

How to Stay Safe From Surrogate Claiming Parental Rights

To safeguard yourself and prevent a surrogate from claiming your child, you can take these steps:

  1. Associate with a highly experienced agency with reliable surrogates that professionally looks after the surrogacy arrangements. Agencies possess integral processing that ensures the surrogate acknowledges legal obligations. Thus, everything moves seamlessly.
  2. Other than surrogacy agencies, you can also employ a surrogacy coordinator. A professional individual possessing knowledge and experience will handle the women throughout the surrogacy process. This coordinator will connect you and the surrogate, spotting incoming issues and solving them beforehand.
  3. Ensure the surrogate attends a psychiatric evaluation with a therapist adept at identifying emotional issues in people who are giving up on their babies. Loads of surrogacy agencies include this in their hiring criteria. 
  4. If you want to execute the surrogacy process, establish a friendly relationship with the surrogate. Make her want to help you by letting go of parental rights and legal mother’s name.
  5. Last but not least, obtain a professionally made contract with the surrogate. Ensure the contract’s terms are clear, including the surrogate’s intentions, her rights after the birth, her compensation, and your commitment to her. After signing the contract, uphold your agreed terms. 

Can a Surrogate Prosecute You for Attaining Legal Parents’ Rights?

Countries like the USA have a litigious culture where every other person is ready to sue anyone for anything. So a surrogate can try to prosecute you for parental rights. 

Circumstances on Whether a Surrogate Is Eligible to Sue You

If you own a contract with the surrogate in a state where legislation confirms the validation of your contract, then the surrogate won’t be able to sue you. This legal framework will protect you from the surrogate’s claims. However, the surrogate mother might have a few legal alternatives to claim parental rights. 

The probability of a surrogate suing you to gain legal rights over the baby depends on the circumstances:

  1. The surrogate will get legal protection if the intended parents deny payback as per the agreed contract.
  2. In states without an updated surrogate legal framework, the surrogate mother will be the legal mother and can hold onto parental rights.
  3. Many states already have such legal groundwork. However, the laws appear to be outdated. In this case, the surrogate may file a case for parental rights. However, the possibility of winning the case entirely depends on the situation. The United Kingdom is one of those states where it is slightly common for surrogates to change their minds and hold onto some legal rights over the baby. Generally, the surrogate must demonstrate why she is a better caregiver than the intended parents.
  4. If you are executing the surrogacy process independently using your own agreement and without the involvement of a capable lawyer, the chances of the surrogate suing for legal rights are high. In such an instance, you will be given minimum protection of the law since you haven’t legitimized your surrogacy process.
  5. If the surrogate can convince the court that you won’t be a good match for the baby, the court may grant “parental rights” to her. You may be incapable due to your background, including involvement in illegal or menacing activities or refusing to follow the terms of the surrogacy agreement.
Surrogate Baby and Their Mother

Importance of Agency and Lawyer in Surrogacy 

It is significant to recognize the role of an experienced agency in this process. An agency processes surrogates through screening and psychic evaluation to separate females who cannot execute legal needs. If you choose to conduct the process independently, it is wise to employ a skilled lawyer before someone conceives.

Remember to fulfill the agreement honestly with the surrogate and remain faithful during your journey. Then there won’t be a chance that the court will overrule the surrogacy contract. Keep your surrogate from second-guessing her decision to give you the baby.

What Is the Distinction Between Traditional Surrogacy and Gestational Surrogacy?

The primary distinction between gestational and traditional surrogacy is the “biological relation of the mother”. The surrogate employs her own eggs to develop an embryo in traditional surrogacy. In contrast, gestational surrogacy requires both eggs and sperm that create the embryo are externally sourced.

A traditional surrogate is a biological mother. While in the gestational carrier, the surrogate is only the birth mother and does not relate to the child genetically.

In addition to genetic relations, medical procedures can distinguish both types of surrogacy. Gestational surrogacy involves the embryo insertion into the surrogate, which is created in the lab using in vitro fertilization (with eggs and sperm). At the same time, traditional surrogacy requires artificial insemination. Unlike gestational surrogacy, it is free from additional medical procedures like consuming fertility medications and going through the egg retrieval process.

Traditional surrogates have an emotional attachment to their offspring because of the genetic relationship. However, gestational carriers don’t usually have that attachment. Therefore, it might take a lot of time for intended parents to come across a willing traditional surrogate compared to gestational ones. 


A surrogate might be able to keep the baby, depending on the circumstances. Surrogate mothers with pre-birth orders must give the baby to the intended parents. Therefore, it is wise for intended parents to work under a legal framework to get protection. 

The surrogate mother should consent to relinquish legal rights right after childbirth. By using the proper legal documentation, the intended parents will have complete legal rights over the baby. The remainder of the process will be a formality, and the intended parents can keep the child.

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