Can a Surrogate Keep the Baby?

Posted on August 21, 2024

This is a worry for many people who are exploring this path: can a surrogate keep the baby?

A couple of decades ago, there were some ground-breaking court decisions that make surrogacy a much less worrisome avenue to pursue. In 1980, Noel Keane wrote the surrogacy contract that would prove to be important in the from the mid-1980’s, involving “Baby M.”

The intended parents, William and Elizabeth Stern, used a surrogate, Mary Beth Whitehead, to have a baby. The baby, Melissa, was the biological child of the intended father and the surrogate. Once Baby M was born, the surrogate refused to cede custody to the intended parents. The courts declared the contracts for surrogate motherhood illegal and invalid. However, the court also found that custody with the intended parents was in the best interest of Baby M, instead of the surrogate mother.

Then in 1990 a gestational carrier, Anna Johnson, refused to give up custody to the intended parents. When the couple sued for custody, this time the court upheld the contract, and thus the intended parents’ rights. This landmark case legally defined the true mother as the woman who intends to create and raise a child. And it changed the trajectory of the answer to the question can a surrogate keep the baby.

When our patients choose to use a surrogate, they progress through a very detailed legal process. The attorneys make careful provisions to avoid tough situations like those of the past. These cases no longer end up in court. So, the answer to the question: can a surrogate keep the baby? No, she cannot.

At Pathways Fertility, we work closely with reputable surrogacy agencies as well as attorneys who are experienced in protecting their clients interests. Many times, our patients have already done lot of their homework before they come to consult with us. However, if you would like us to help you connect with these experts, you may contact us here and we are happy to give you several names. We don’t want our patients worrying the whole time about the question of can a surrogate keep the baby.