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The Path to Legal Surrogacy in Minnesota

What families should consider before building their numbers through surrogacy

About 10 percent of women (6.1 million) in the United States ages 15 to 44 have difficulty getting or staying pregnant, according to the CDC. About one-third of infertility cases are due to biological issues on behalf of the male, and the same is true of the female, while the remaining cases are due to a mixture of the two. For couples wishing to have families, these statistics are hardly a comfort. For a growing number of families in the United States, infertility is being combatted with surrogacy laws.

But if you choose the surrogacy journey, consider what the law has to say about it.

What do the state laws say?

The laws are fairly fuzzy in Minnesota. For example, some couples have been required to adopt their child after birth since they were not recognized as parents in the eyes of the law. The Minnesota Gestational Carrier Act intends to clarify the incongruous case law, regulations and rulings in the state. It would solidify parentage of the intended parents and install unified standards for both the surrogate mothers and the expectations of intended parents.

It is not illegal to enter into a surrogacy agreement but there is little to no regulation of the practice outside of the policies of individual agencies. With that in mind, it would be beneficial to all parties getting involved in surrogacy to fulfill the generally recognized national standards for entering into a surrogacy arrangement. The standards are:

  • All parties (the intended parents, the surrogate and the surrogate’s partner/spouse) be evaluated by a surrogacy expert counselor to explore all of the complications with mental health that can come from this arrangement.
  • The surrogate must be 21 years old, have had an uncomplicated successful pregnancy, and have health insurance.

Many agencies offer a multi-faceted service that includes: matching you to a pre-screened surrogate; providing mental, medical and legal services throughout the process; and ensuring the success of your surrogacy. These agencies don’t come cheap, however; they start at $40,000 and some go up to $240,000.

What other avenues can I explore?

Many infertile adults don’t have $240,000 of disposable income to spend on their family, and even pulling together the $40,000 could put a prospective family into an insurmountable hole. One of the options is to find a friend or family member to agree to be a surrogate.

Using a known person will save money from going to an agency, but the legal implications are extensive and cannot be avoided. Through attorneys, both side’s interests can be represented and a contract can be entered into.

In general, every surrogacy contract should cover the following elements:

  • Finances, including the surrogate’s base compensation as well as any additional compensation the surrogate may receive for invasive procedures, assisted reproduction, carrying multiples, going on bedrest, etc.
  • The risks and liability associated with the pregnancy
  • The surrogate’s health and her responsibilities to take care of herself and the baby throughout her pregnancy and follow doctor pre-birth orders
  • An agreement on sensitive issues such as selective reduction and termination, if that should become necessary
  • Who will be present at prenatal appointments and birth

Finding a healthy and willing surrogate is a big part of the battle, but all parties must have some deep conversations. Both sides must be represented by a reputable and experienced Minnesota family law lawyer or surrogacy attorney that has experience with surrogacy contracts. 

For more information on this area, see our overview of family law.

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