Adding A Child To Your Family By Surrogacy

Surrogacy is the process in which somebody maintains a pregnancy with the intention of handing over parental responsibility for the resultant child after its birth. It is a way of having a child that is frequently selected by those who wish to expand their family but either cannot have a child due to infertility or an inability to carry a pregnancy to term, or same-sex couples who wish to have a genetic link with their child.

Two Types Of Surrogacy Arrangements

Here is a closer look at two common types of surrogacy arrangements.

Gestational surrogacy

With gestational surrogacy, an embryo is created using in vitro fertilization (IVF), with the sperm and eggs being donated by one or both of the intended parents and implanted into a surrogate who will carry the child to term. In this instance, the surrogate usually has no genetic link to the child that they are carrying and will typically perform this service for a fee.

Most of the necessary contractual paperwork regarding the transfer of parentage will have been agreed upon by all parties prior to the IVF treatment occurring.  However, the non-biological parent will want to legally adopt the child after the child is born.

Gestational surrogacy is legal in the state of New Mexico, [1] although it is recommended that an attorney with considerable experience in family law in Albuquerque ( be hired once the decision is made to pursue this method of building a family to ensure that all legal risks and responsibilities are considered and that agreements regarding compensating the surrogate are legally enforceable. 

The surrogacy agreement they draft should include provisions for medical expenses, detail the circumstances that could necessitate the termination of the pregnancy, and legally enforce parental rights at birth. In many cases, a confidentiality clause will be required to protect the interests of all parties.

Traditional surrogacy

Traditional surrogacy is the name given to a pregnancy where the resulting child will be adopted by a pre-agreed individual or couple at birth. In this instance, the intended parents usually have no biological link to the child and will need to pursue a formal adoption process [2] to assume legal parental responsibility of the resulting child.

Traditional surrogacy is legal in the state of New Mexico and requires that the surrogate terminate her parental rights after the birth of the child. In many cases, New Mexico family courts will grant parentage orders prior to the birth of the child, especially when the child is biologically linked to one or both of the intended parents. 

Both the surrogate and intended parents should hire a family law attorney to provide them with independent legal advice and ensure that all parties’ rights and interests are protected throughout the surrogacy process. A contract will be written that will specify the responsibilities of each party, along with the costs, risks and liabilities each party must accept, how and when parental rights will be transferred from the surrogate to the intended parents, the level of contact that is acceptable prior to the child’s birth, and any other topics that are important to the surrogate or the intended parents. A party that is not biologically related to the child should legally adopt the child once the child is born.

Important Factors To Consider

It is highly likely your family law attorney will recommend all parties submit to a medical and psychological evaluation prior to pursuing surrogacy. This is because surrogacy can be a long and arduous process that, particularly as birth approaches, can become emotionally charged. Failing to adequately consider all of the risks and implications of this process at the outset can result in an unsatisfactory outcome for all parties. 

Surrogacy is not an inexpensive way of adding a child to a family, either financially or emotionally. It is essential that the surrogate has sufficient medical insurance, which will usually be funded by the intended parents. Other costs, such as compensation for carrying the child to term, maternity clothes and time off work will be billed to the intended parents, although the specifics will be agreed upon prior to beginning the process and documented in the surrogacy agreement.

The process does not end with the handover of the child at birth. The intended parents will need to complete a number of legal processes to establish parental rights, including obtaining a birth certificate with their names on it, adopting the child and addressing any outstanding financial commitments to the surrogate. 

At the Law Office of Dorene A. Kuffer, we can guide you through the entire surrogacy process, ensuring you are compliant with all applicable New Mexico laws and creating a tailored surrogacy agreement for you. We are experienced in all types of surrogacy agreements to grow your family and can support you in fulfilling your dream of becoming a parent.