Surrogacy is an important way for families who cannot have children on their own to realize their dreams. The practice remains controversial, however, despite the fact that surrogacy has become more common.
Currently, no federal laws regulate surrogacy agreements. Instead, individual states decide whether to allow surrogacy, and if so, under what conditions. As a result, fewer than half of states have surrogacy laws and of those, only 10 have laws specifically allowing the practice.
It is important that parents who are considering surrogacy to build their families are aware of the relevant state laws prior to entering a surrogacy agreement. The intended parents and surrogate should each have an attorney review the agreement to ensure that they understand their rights and responsibilities.
Minnesota Law Silent On Surrogacy
Approximately 50 to 100 Minnesota families enter into surrogacy agreements each year. Like the majority of states, Minnesota does not have a specific surrogacy law. The state's other family laws, including its adoption laws, do not mention surrogacy.
The only thing certain under Minnesota law is that the intended parents will need to take legal action to make sure that they are established as the child's parents either through a paternity/maternity action or an adoption. Thus, the private contract between the intended parents and surrogate is extremely important to protect the rights of all parties involved.
The Gestational Carrier Requirements Bill
In 2008, the Minnesota Legislature attempted to provide a legal framework for surrogacy in the state. The bill, "Assisted Reproduction" (SF 2965), was passed by both the House and Senate only to be vetoed by former Gov. Tim Pawlenty. The governor felt the bill did not provide adequate legal protections to the surrogate or the child.
Under the bill, the surrogate would have had to meet basic eligibility requirements. The bill mandated that surrogates must:
- Be at least 21 years old
- Have given birth to at least one child
- Complete a physical and mental health evaluation
- Consult with an attorney prior to entering the agreement
- Provide evidence of health insurance
The intended parents also would have had to meet eligibility requirements:
- One of the intended parents must have donated either the sperm or egg.
- The parents must have a proven medical need for surrogacy, evidenced by a physician's affidavit.
- Both intended parents must complete a mental health evaluation.
- The intended parents must consult with an attorney (different from the one representing the surrogate).
Additionally, the bill provided that the intended parents would be treated as the biological parents immediately upon the birth of the child. The surrogate would be required to immediately surrender custody at the child's birth and the intended parents would be required to immediately accept custody of the child, regardless of how many children were born and whether the child(ren) had any resulting medical or health issues.
The proposed legislation did not make it into law; however, it does provide a general idea of the types of restrictions Minnesota lawmakers may try to impose on surrogacy arrangements in the future.
Regardless of whether such a law is ever passed, it is important that parents and potential surrogates seeking to enter a surrogacy agreement consult an experienced attorney prior to signing any legal documents. Both parties need to understand the scope of the agreement and their corresponding legal rights and duties under the contract.
For more information on private surrogacy agreements, contact an experienced family law attorney.