Surrogacy in Minnesota
by: Maury D. Beaulier
The Law
Surrogacy laws vary from state to state. It is probably the most
widely accepted practice under California State law.
By contrast, Minnesota law does not specifically mention surrogacy.
Even the state's adoption laws shy away from the term. The primary
stigma relating to surrogacy is them is guided concept that surrogacy
means buying and selling children. Currently, there is a bill currently
under review in 2003 that would specifically address the surrogacy issue
and assisted reproduction (HF792). Although the bill is unlikely to
pass, it is a step toward recognition of the surrogacy process in this
state.
Even in the current environment surrogacy agreements are possible and
practical. Given the lack of uniformity between states and the unsettled
nature of the law in Minnesota, however, it is extremely important that
surrogacy agreements are carefully drafted to ensure compliance with
existing laws. One thing is clear, under current Minnesota law a
stepparent adoption is necessary. In essence the surrogate mother by
contract voluntarily terminates her parental rights and the intended
mother adopts the child.
The Risk
The enforceability of surrogacy contract has yet to be tested. Under
adoption laws in Minnesota, the surrogate mother may have a right to
invalidate her adoption consent. Although the adoptive (sometimes
biological) parents may go to court to seek enforcement of the surrogacy
contract, it remains unclear how a court would rule. It could decide
using the normal contract law principles or it could decide that such a
contract is unenforceable based on adoption laws or public policy.
What Exactly is Surrogacy?
Surrogacy is a form of assisted reproduction and a "surrogate" mother
is a woman who bears a child on behalf of other parents. This can happen
in one of two ways. First there are typical surrogates - a woman that is
artificially inseminated with a father's sperm and reproduces with her
own egg.
Second, there is gestational surrogacy where the surrogate mother
carriesan embryo comprised of the egg of the biological (intended)
mother and the sperm of the biological (intended) father. The
surrogates' egg is not used.
This issue becomes more complicated with gestational surrogacy
described below. In such cases, the surrogate, while she is the birth
mother, is not biologically related to the child.
Surrogate Agreements And Terms
As previously stated, surrogacy agreements must be carefully drafted
to comply with existing state law. As a result, it is extremely
important for any drafter to be current on existing adoptions and
surrogacy statutes. In most cases, however, typical surrogate agreements
cover a number of issues which may include:
- The Biological parents' right to be advised of and attend any
medical exams and to review any and all medical records of the
surrogate (even those not related to the pregnancy).
- STD testing for parties including the surrogate and biological
parents.
- Medical evaluations of all parties to determine whether there are
any genetic risks. (Everyone wants a healthy child).
- Psychological counseling for the surrogate mother paid by the
biological parents.
- A determination of parental rights or contract for adoption.
- A confidentiality agreement to prevent public disclosure of this
private and sensitive information.
- Compensation agreements for the surrogate mother (Most often in
excess of $10,000).
- Terms regarding how and when the agreement may be terminated.
For additional information, please contact attorney Maury D. Beaulier
at 952.746.2153.
