Today’s families come in all shapes and sizes. You may have biological children with your partner but have difficulty conceiving another child. You may be a single parent who is ready to begin your family. Same-sex couples may look for ways to expand their family. Whatever your situation, one of the things that you might consider is gestational surrogacy.
What is surrogacy?
Surrogacy is a process where a woman carries and delivers a child for others who become the child’s parents. The woman who carries the child knows that she doesn’t plan to be a parent to the child. Instead, the woman helps another person or couple have a child. The woman who carries the child is called the gestational carrier or surrogate.
A gestational carrier may use their own egg. They may also use a donor egg. The hallmark of a surrogate relationship is that a woman is a gestational carrier for a child with the intention of that a different person or couple raise the child as their own.
North Carolina law allows surrogacy
There are no federal laws about surrogacy, so it’s up to each state to decide whether to allow it. North Carolina allows it. There are no North Carolina laws that prohibit surrogacy, but there are also no laws that explicitly allow it, either. Generally, you can enter into a surrogacy arrangement.
Can you pay for surrogacy?
The adoptive parents can pay expenses for the gestational carrier. They can pay the carrier’s living expenses during the pregnancy and for six weeks after birth. They may pay for hospital fees and related medical expenses.
Allowed expenses also include the birth parent’s legal expenses for the adoption proceedings. However, the intended parents can’t pay the carrier for anything else. The gestational carrier can’t make a living or profit from being a carrier in North Carolina with the exception of living expenses during the pregnancy and for a short period after the birth.
A careful written agreement
The most common way to use a surrogate in North Carolina is to prepare a written agreement before the pregnancy begins. It’s critical that everyone involved is on the same page about how they want the surrogacy to work and what the rights and obligations are of each person involved. The best practice is to prepare a consent agreement regarding parentage before taking any steps to begin a pregnancy.
A North Carolina surrogacy attorney can help you draft a consent surrogacy agreement. The agreement must clearly state the names of everyone involved. It must spell out how the surrogacy is going to work and what the intended parents are going to pay the gestational carrier for her services. It should carefully state who the intended parents are. Everyone involved should sign the consent order.
A pre-birth order for placement
When the pregnancy is about three months along, the intended parents can begin formal legal proceedings. They can ask the court for a pre-birth order regarding the child. The purpose of the pre-birth order is to allow the intended parents to have legal rights to the child as soon as the child is born.
You can begin the case where the gestational carrier lives, where the intended parents live or where they plan for the gestational carrier to deliver the child. There are residency requirements, so not just anyone can bring a case in North Carolina. If the consent surrogacy agreement is in order and the case is filed properly in the North Carolina courts, the court may issue a pre-birth placement order.
With a pre-birth placement order, the intended parents can come to the hospital. They can make medical decisions for the child right away and take the child home with them as soon as the hospital discharges the child. Not all county courts will issue a pre-birth order, so it’s important to work with your surrogacy attorney in North Carolina to carefully determine where to bring your case and what to say in your petition for a pre-birth order. If you have a pre-birth order, you must finalize the adoption shortly after the child’s birth.
Formalizing an adoption after birth
You can also complete an adoption through a surrogate completely after the child’s birth. A surrogacy through traditional adoption feels like many other adoptions where the child is placed immediately after birth. You may still pay allowed expenses for the birth mother.
The main difference between a pre-birth order and an adoption after birth is that formal legal proceedings don’t happen until after the child is born. It’s best to have a consent agreement for surrogacy in all cases. It’s also best to have a pre-birth order. However, if your case is in a county that doesn’t allow for a pre-birth order or for whatever reason you’re not able to get a pre-birth order, you can still formalize your adoption after the child’s delivery.
What if the gestational carrier changes her mind?
The law isn’t clear about what happens if a gestational carrier doesn’t want to honor the agreement. There’s no North Carolina case from the Court of Appeals or Supreme Court addressing what happens if a surrogate changes their mind. On the one hand, a child is presumed to be the child of the mother who delivers the child and her husband. However, the courts routinely use paternity testing to determine fatherhood, and there’s no law that says the court can’t uphold a surrogacy agreement where the gestational carrier unilaterally wishes to undo the agreement.
In the Prashad v. Copeland case in 2009, a gestational carrier sought primary custody after changing her mind after the child was born. The North Carolina court didn’t get to rule on the issue, though, because the gestational carrier stipulated to a visitation schedule before the court made a decision. However, the gestational carrier later asked a Virginia court to override the North Carolina court’s decision, and the Virginia court refused. It’s still very unclear as to how a North Carolina court would address a situation where a gestational carrier changes their mind. It’s also unclear as whether the courts might look at the issue of surrogacy differently where the gestational carrier uses her own egg and is a genetic parent to the child versus a situation where the entire embryo is implanted and the gestational carrier has no genetic link to the child.
How can I protect myself and my child?
Even though North Carolina law is unclear, surrogacy may be right for you. The best practice is to have a clear understanding with everyone involved about the terms of the surrogacy. All of the parties should be completely sure going in that surrogacy is what they want to do. It’s important to work with a surrogacy attorney to draft the paperwork for you as quickly and precisely as possible. Undertaking the surrogacy process carefully and deliberately can help you navigate this life-changing event with a complete understanding of what to expect as you add to you family.