A Family Attorney Explores the Legal Aspects of Gestational Surrogacy

It’s the wish of every married couple to start a family and raise their own children. For same-sex couples and those having trouble with infertility, numerous advances in Assisted Reproductive Technology (ART) are now allowing them to explore options to have children, and gestational surrogacy is among them.

Such advances are not without its flaws, however. Definitive laws are yet to be determined in the advent of ART advances, and matters can easily become messy should things do not go as planned. This is why it’s always best to seek legal assistance from a family attorney before exploring gestational surrogacy as an option.

Defining Surrogacy

The simplest definition of surrogacy describes it as an act wherein a woman carries the child of a couple who cannot conceive a child themselves. In gestational surrogacy, a donor or the intended mother provides the egg then fertilized through in vitro fertilization (IVF).

Surrogacy’s Growing Popularity

A handful of countries, and some states in the U.S., allow the use of reproductive technology for couples who want to start a family. In fact, surrogacy has become a commonplace that celebrities like Elton John, Nicole Kidman, and Sarah Jessica Parker have all admitted to using surrogates in birthing their babies. Most surrogacy cases go smoothly, making this procedure more acceptable as a viable alternative to natural childbirth.

Legal Issues

The United States, however, has no federal laws regarding ART procedures like gestational surrogacy. In addition, states like North Carolina have yet to publish laws that cover the use of a surrogate mother in giving birth to a child. This causes a number of other legal, social, and ethical issues when it comes to parental rights, a child’s best interests, and other parental rights in non-traditional families.

With no such laws in place, couples considering gestational surrogacy should take steps to protect everyone involved, including the surrogate. I suggest a contract always be drafted in accordance with the wishes of the parents and any applicable laws in North Carolina.

There are a lot of issues that need to be addressed, including whose genetic material is to be used for the creation of the embryo and, for same-sex couples, who is more viable as a donor or a carrier. There’s also the issue of whose property the embryo will be should the marriage lead to divorce or separation.

A bit of foresight is always recommended when considering ART procedures. To avoid complications in the future, it’s best to talk with a Raleigh child custody lawyer with Kurtz & Blum, PLLC before entering into such a complicated arrangement.


  • What to consider when exploring surrogacy, The Charlotte Observer
  • As Surrogacy Becomes More Popular, Legal Problems Proliferate, ABA Journal