Surrogacy is an alternative form of reproduction where a woman agrees to bear a child for a man, woman or couple incapable of having a child of their own. These days, surrogacy is viewed as a relatively commonplace arrangement; however, the legal, ethical, and emotional complexities of this form of reproduction cannot be understated. In fact, some states refuse to recognize these arrangements at all and may allow a surrogate to retain her parental rights and/or deny the intended parent’s rights to the child. Although Iowa’s statutory scheme does not directly address surrogacy contracts, currently these arrangements are not held as void against public policy. Because of the uncertainty in the law and the extremely high stakes that are involved, Iowans should exercise serious caution when entering into a surrogacy arrangement.
In general, you should take the following steps in order to protect your rights.
(1) The first thing you should do is hire a lawyer who is familiar with surrogacy agreements. A knowledgeable attorney will guide you through the complex process and make sure that your interests are being protected.
(2) You need to find a surrogate that you can trust. Because this area of the law is so unsettled, if your surrogate backs out of the agreement you are not guaranteed a right to recourse. This means you may lose any fees or medical expense paid to the surrogate or even any parental rights to the resulting child.
(3) As soon as possible, you should draft a written contract with your surrogate. You will need to include various terms including the intended parental rights of all parties involved and any fee arrangements you may have made. Iowa Code Section 710.11 implies that surrogacy contracts will be enforced and their use is not considered a form of “baby selling.” Now that same-sex couples have the right to marry in Iowa, a court would probably look favorably upon a surrogacy agreement involving LGBT individuals; however such arrangements have not yet been considered.
(4) If possible, obtain a pre-birth order. Currently, Iowa trial courts allow intended parents to obtain pre-birth orders designating the intended parent or parents as the mother and/or father but only if the intended parent is also a genetic parent.
(5) Terminate the surrogate’s parental rights. Although Iowa law does not answer the question of “maternity,” in practice, a woman is presumed to be the mother of a child she has given birth to. Therefore the surrogate’s parental rights must be terminated before the intended parents may begin adoption proceedings. If the surrogate is married, her husband presumed to be the father of the child, but this presumption can be rebutted through routine genetic testing. The termination of parental rights is a complex statutory process that must be followed perfectly.
(6) Begin adoption proceedings. Since there are no statutory provisions addressing surrogacy in Iowa, the intended parents must follow statutory adoption procedures in order to formalize and legalize their relationship to the child. The adoption process will be different depending on the intended parent or parents’ genetic relationship to the child.
Surrogacy is a great way for deserving couples to have children when, for whatever reason, they are not able to have them naturally. But you need to make sure to proceed with caution through this emotionally and legally tricky