Keeping Up With...Surrogacy Issues

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The recent news that Khloe Kardashian is expecting a child through surrogacy with her ex Tristan Thompson – which we all know way too much about whether we want to or not – brings up many questions about surrogacy and the interplay with family law.  Such as, is he still the dad?

Tristan and Khloe, who are the intended parents, likely entered into a gestational carrier agreement with their surrogate (and spouse) to outline the expectations for parental rights, genetic material, embryo transfers, and medical needs, insurance, compensation, privacy and future communication, and other aspects such as rights to an abortion.  The parties have their own attorneys to counsel on negotiating the agreement and should have gone through psychological screening and counseling sessions prior to signing the agreement.  

Whether or not the genetic material (egg, sperm, embryo) transferred to the carrier is Tristan’s, Khloe’s, and/or that of a donor, the gestational carrier agreement would confirm parentage with the intended parents, with Tristan as the child’s legal father and Khloe as the child’s legal mother.  Further, a court order has or will be issued that confirms the parentage with the intended parents, rather than with the surrogate who gestates and gives birth to the child.  The intended parents are named on the child’s birth certificate from birth and the parentage order confirms their legal parental rights. Once the child is born, they will have the same rights to the child and the child will have the same rights to them as if a carrier was not used for the pregnancy and birth.  In certain states and scenarios, there may be several court orders, or even an adoption, to confirm the legal rights with the intended parents.  Therefore, other aspects of family law, such as child custody and support, would play a role in future legal needs for the child and parents.

Often referred to as a surrogate, a woman who carries a child for another family and does not use her own genetic material is a ‘gestational carrier.’  The child may be from the egg and sperm of the intended parents, or with donor egg or donor sperm and the intended parent’s genetic material, or with donated embryos.  Though not as common and prohibited in certain states, a woman may use her own egg and carry for another family as a ‘genetic carrier’ or a ‘traditional surrogacy,’ after which an adoption is required to secure the intended parent’s legal rights to the child.   A surrogacy may be compensated, meaning the carrier is paid for the arrangement or may be compassionate, where the carrier is not paid but expenses are still covered by the intended parents.  Surrogacy laws vary by state, with many states using a combination of contract law and the court system to navigate surrogacy arrangements and confirm parentage.  Further, surrogacy is prohibited in most countries as it is viewed as a form of human trafficking, and if allowed, has limited parameters.  As the United States has some of the most flexible laws for surrogacy arrangements, intended parents and surrogates often cross both state and national borders.  International surrogacy arrangements have additional issues related to immigration, passports, language barriers, and legal differences in recognizing surrogacy.  Further, social and policy issues can have a devastating impact, as we saw with the war in Ukraine, which previously had a robust surrogacy program and left surrogates pregnant and children to be cared for, and with the Covid pandemic, that left many unable to travel with courts and clinics closed while carriers were already pregnant.   As medicine and technology continue to develop, and the law slowly adjusts alongside societal shifts, we will continue to see new and emerging legal issues with surrogacy.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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