When it comes to surrogacy, the rights of the surrogate are just as important as the rights of the intended parents. A surrogate is giving of herself and her physical wellbeing to carry a child for someone else and make their dreams of parenthood come true. Because of this, it is important not to overlook surrogates rights and furthermore, specify them in the surrogacy agreement.
A surrogate has contractual rights in terms of the surrogacy contract as well as the absolute right to make decisions regarding herself and the pregnancy. According to the Due Process Clause, a surrogate’s right to privacy is protected, meaning she can terminate the pregnancy despite state action trying to control this. This being said, the situation can also be reversed, where the intended parents decide they would like to terminate the pregnancy and the surrogate does not wish to. Technically, the surrogate does have the right to make this decision, however, under the contract, the intended parents may be entitled to claim that the surrogate is in breach of her contractual obligations and, therefore, no longer entitled to compensation or other benefits under the contract. In this situation, another question arises. If the surrogate decides to sustain a pregnancy that the intended parents wish to terminate, do they have an obligation to take custody of the child? The likely answer is that the intended parents must take responsibility for the child and must assume custody.
To avoid any issues such as those above, it is important to outline all rights, of both the surrogate and intended parents, clearly in the surrogacy agreement. A surrogate should work alongside the intended parents to ensure that everyone is on the same page regarding what would happen under unforeseen circumstances. Both parties have rights they are entitled to and it is important to work in conjunction to ensure a smooth surrogacy journey.
