Arizona’s Outlook on Surrogate Parent Agreements
Arizona bans traditional surrogate parenting contracts. The phrase ‘surrogate parent’ is not used in Title 25—the domestic relations statutes. Section 25-218 embodies the state’s ban, and sets out rules about custody of a child born from that contract, presumptions about paternity, and definition of such a contract.
Definition of Surrogate Parent Contract
According to 25-218, ‘Surrogate Parent’ is a woman, who either agrees to have a fertilized embryo implanted in her womb, and bear the child, or conceive a child through artificial or natural insemination. It happens when a mother can’t bear children, but wants to raise her husband’s biological child. The couple may hire a surrogate mother to have ‘their’ baby.
Child born from Surrogate Parenting Contract
One legal presumption takes effect—if the surrogate mother of the child is married, her husband is presumed to be the legal father. As the father, he has rights to both joint or sole legal decision making and parenting time. Those are fundamental rights, and can’t be offered for sale to the highest bidder. As for the mother, she is entitled to legal custody of the child born from a surrogate parenting contract.
Policies Underlying the Ban
Arizona’s view may be based on the common law of contracts. One rule is that the parties should have equal bargaining power. In a typical surrogate parenting situation, one married couple is able to pay for a woman to carry a child, while the woman who acts as the surrogate probably needs the money. There’s an almost total lack of equality between them.
Arizona also does not recognize same sex marriages, so it is fair to conclude that Arizona does not support what some may consider “unconventional” relationships. If a married couple cannot conceive a child, an argument may be made that they have the option of adopting a child, as opposed to paying a woman to bear a child for them.
What Can Go Wrong?
If a couple makes a contract, they have no civil remedies if the contract is breached. First of all, the mother is granted legal custody of her birth child, and if she’s married, the father will be presumed the legal father. It’s a no-win situation for Arizona residents. The contracting couple has no standing to challenge the custody of the child, since there was no valid contract under Arizona law. Even if the surrogate mother is single, she has legal custody, and the contracting parents do not have any standing to challenge it. They aren’t related to the birth mother, and have no relationship with the newborn child. Once the surrogate mother decides to keep her child, that’s the legal end of the matter.
A few Concluding Thoughts
Infertility can cause terrible unhappiness in a marriage, but making an illegal contract is no way to solve this problem. Since surrogate contracts are not legally recognized, the couple will have no protection should the surrogate breach the ‘contract’. Adoption may be a better alternative, since it provides full protection under the law.