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  • Writer's pictureRalph M. Tsong

The Worst Case Scenario: The Surrogate Who Wants to Keep the Baby


As surrogacy lawyers, we know from experience even though most journeys go smoothly, it's important to be ready for possible legal complications. While rare, a specific legal challenge can arise: What if the surrogate wants to keep the baby at the time of birth? Or, what if a surrogate decides not to go through with contract once she is pregnant? These situations are considered uncommon and can lead to complex legal issues.  

In this blog, we'll explore these scenarios and answer this common question, providing a comprehensive understanding of potential outcomes in gestational surrogacy. It's important to note that the resolution may vary based on the laws of the jurisdiction involved and the details of the surrogacy agreement. Note that this analysis is for gestational surrogacy. We discuss what the outcome would be in traditional surrogacy (where the surrogate uses her own egg) in a Newsweek article here.

What happens if the surrogate decides to keep the baby? 

From our extensive experience, spanning over hundreds of surrogacy matches, we have never encountered a surrogate who desired to keep a child not genetically hers—it is an exceedingly rare occurrence. Despite its infrequency, it is a question and worry that all intended parents have. 

In surrogacy friendly states, surrogacy agreements clearly specify that the Intended parents are the legal parents of the child and the surrogate and her spouse relinquishing any parental rights or presumptions of parentage they might have. The agreements state it is in the best interest of the child to be with the intended parents.  

In California, when surrogacy cases addressing this issue reach the court, the surrogate is not expected to prevail in a legal action. This is because of a legal precedent set by the California Supreme Court in the 1993 case of Johnson vs. Calvert. The Court ruled that they must uphold the intentions outlined in the surrogacy agreement signed by the parties involved. 

However, if the surrogate desires to keep the baby and is contemplating taking it away at birth, that cannot happen after the court has issued a judgment of parentage. This legal document is usually obtained well before the surrogate gives birth, directing the hospital to recognize the Intended Parents as parents. It's crucial to provide ample notice of the surrogate's pregnancy to allow sufficient time for your attorney to obtain the judgment.  

In the event that the surrogate decides to change her mind after the judgment is in place, the judgment ensures that the Intended Parents take custody of the child at birth.  


What happens if a surrogate decides to back out with the arrangement? 

We will address the scenario regarding how to handle the situation after the surrogate decides to change her mind.  

If a surrogate decides to withdraw before pregnancy, the outcome depends on the surrogacy agreement's specific provisions. These contracts typically allow either party to terminate before pregnancy occurs. 

However, if the surrogate is already pregnant, most contracts prohibit termination once the surrogate is carrying the Intended parents’ child. If a pregnant surrogate refuses to cooperate with confirming the parentage of the intended parents, there are two remedies: 1) Intended Parents may declare a breach and stop payments and (2) Intended Parents may pursue a parentage action without the surrogate's cooperation. 

In cases of declaring material breach, where the surrogate violates the contract, she would be obligated to reimburse expenses incurred as a consequence of the breach, as may be required under the contract. In a state like California where the law is clear about parentage, the intended parents should be able to obtain a parentage judgment with the contract and a showing that the child to be born is a result of an embryo transfer.  


In summary, when a surrogate decides to keep the baby or withdraws from the arrangement, the individuals involved must have a well-drafted and negotiated surrogacy agreement. These agreements form the basis for handling unexpected events, providing clear guidelines on the rights and duties of everyone involved. Furthermore, it can act as a legal roadmap, aiding in dispute resolution and ensuring the well-being of all individuals, including the intended parents, surrogate, and the child.  

Seeking the assistance of an experienced surrogacy lawyer throughout the surrogacy process is a key step. For expert counsel and personalized guidance tailored to your unique surrogacy needs, contact Tsong Law Group now.



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