Surrogacy in North Carolina: What Can You Expect?
According to www.Merriam-Webster.com, surrogacy is “the practice by which a woman (called a surrogate mother) becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children.” In some cases, the woman who gives birth to an infant is the biological mother of the child because she substitutes her egg for that of a woman who desires a child. In other cases, she is not the biological mother because a man and woman have each used their own genetic material to create the child she carries. Sometimes the donors of the genetic material are anonymous. Parties who attempt surrogacy in our state can expect uncertainty or risk when it comes to the law.
Surrogacy in North Carolina
Our state has no laws about surrogacy, although some other states do. None of our appellate cases address the matter. Therefore, family law attorneys prepare contracts that try to make the surrogacy process as legally secure as possible, hoping to withstand future legal challenges. There may also be some type of contract, acknowledgement, or consent to various procedures that one or more of the parties might sign at medical facilities. To date, none of these signed documents have not been ruled upon by our Court of Appeals. There is no decision on whether medical ethics require or prevent a doctor to perform the procedure. Worse yet, there are no uniform or standard surrogacy documents or methods used in this state, although there are state-wide experts in the matter.
Old Laws on the Books
In some areas of the state the judges feel more sympathetic to the cause than others, broadly interpreting old laws for new circumstances. The closest law we have is a one sentence statute from 1971, NC Gen. Stat. §49A-1. It says any child “born as the result of . . . artificial insemination shall be considered . . . the same as a naturally conceived legitimate child of the husband and wife requesting and consenting in writing to the use of such technique.” This applies to insemination by means other than sexual intercourse. However, it doesn’t apply to surrogacy. It only applies to two married people who agree in writing to use their own genetic material to conceive a child who is carried by the wife. The child is then considered to be a legitimate child born of the marriage. It does not apply to children born out of wedlock or spouses who fail to consent in writing. Now that the federal courts have ruled same sex marriages are valid in our state, it remains to be seen whether the terms husband and wife are even legally adequate, or if the statute must be modified to recognize more generic titles, such as spouse and spouse.
Issues to Address
The legal status of “biological” parents and “legal” parents in surrogacy cases is unknown in North Carolina. Birth certificates automatically reflect the name of the woman who delivers the infant, and the name of her husband if she is married (or blank if she is unmarried and the father does not agree to be added). Currently, unless there is a lawsuit, it does not matter legally if the egg did not come from the surrogate. Nor is it relevant (at that point) that the man the surrogate is married to did not provide genetic material and is completely unrelated to the child. A contract should address that matter too. We do not have laws related to maternity testing, as we do for paternity testing. Legal custody of the child should also be addressed in the contract, as well as possible adoption if that applies.
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