How Are Disputes Resolved in Surrogacy Agreements?

Disputes in surrogacy arrangements can arise due to various reasons, including disagreements over parental rights, financial compensation, medical decisions, or breaches of the surrogacy contract. These conflicts can be emotionally charged and legally complex, requiring clear agreements and effective legal mechanisms for resolution. The way disputes are handled often depends on the terms outlined in the surrogacy agreement, local laws, and the willingness of the parties to work collaboratively or seek external intervention.

Ways to Resolve Disputes in Surrogacy Agreements:

Clear and Comprehensive Surrogacy Agreement:

A well-drafted surrogacy agreement is the first line of defense against disputes. It should clearly define the rights and responsibilities of both the intended parents and the surrogate, including:

• Parental rights and custody.
• Financial compensation or reimbursement (especially in altruistic vs. commercial surrogacy).
• Medical decision-making authority.
• The surrogate's rights, including her ability to terminate the pregnancy under certain conditions.
• What happens in case of a breach of contract.

A detailed agreement helps prevent disputes by setting out the expectations of all parties involved. It should address potential conflicts that could arise, including what happens if the surrogate decides to keep the baby or if the intended parents want to change the medical plan.

Mediation:

Mediation is a form of alternative dispute resolution (ADR) in which an impartial third party helps the intended parents and surrogate reach an agreement. Mediation can help preserve the relationship between the parties and offer a more flexible, confidential way to resolve disputes than going to court. It is often a preferred method in surrogacy cases as it can be less adversarial and quicker.

Benefits of Mediation:

• It is often quicker and more cost-effective than litigation.
• It can also preserve the relationship between the surrogate and the intended parents, which is important in surrogacy arrangements.

When to Use:

Mediation is particularly useful in situations where there are disagreements over medical decisions, financial compensation, or post-birth arrangements.

Arbitration:

Arbitration is another form of ADR where a neutral third party makes a binding decision after hearing arguments from both sides. Unlike mediation, arbitration results in a final decision that the parties must abide by. It can be quicker than litigation and is often used when mediation fails to resolve the dispute.

Benefits of Arbitration:

• It is legally binding and can provide a quicker resolution compared to court proceedings.
• It allows the parties to avoid the lengthy, public nature of court trials.

When to Use:

Arbitration is useful when parties want a legally enforceable decision but wish to avoid the complexity and publicity of court proceedings.

Court Proceedings:

If disputes cannot be resolved through mediation or arbitration, the parties may have to resort to court proceedings. This is often the last step and can involve lengthy, expensive, and emotionally draining litigation. Courts can address issues related to custody, breach of contract, compensation, and parental rights.

Types of Disputes:

Parental Rights:

Who has legal parental rights to the child? This can be a major issue, especially if the surrogate changes her mind about handing over the child.

Breach of Contract:

If either party fails to fulfill their obligations, such as medical treatment or agreed-upon payments.

Medical Decisions:

Who has the authority to make decisions about the surrogate’s health and the pregnancy?

How the Court Decides:

Courts typically prioritize the best interests of the child, along with the enforceability of the surrogacy agreement. In some jurisdictions, the court may also consider the surrogate’s health and well-being when making decisions.

Surrogacy Laws and Legal Protections:

The resolution of disputes in surrogacy often depends on the specific legal framework in place in the jurisdiction where the surrogacy occurs. Countries like India, the US, Canada, the UK, and Australia have specific laws governing surrogacy, and these laws offer protections to surrogates, intended parents, and the children involved. Key legal considerations include:

• Parental Rights: How the law recognizes the legal parents of a child born through surrogacy. In some cases, intended parents must go through an adoption process or obtain a parental order.
• Commercial vs. Altruistic Surrogacy: In countries where commercial surrogacy is banned (such as India), there may be disputes over whether financial arrangements are valid.
• Jurisdictional Issues: For international surrogacy, disputes may arise regarding which country's laws apply, particularly in matters of parental rights, citizenship, and immigration for the child.

Post-Birth Disputes:

After the child is born, disputes can arise if there is any disagreement over custody or the surrogate’s wishes regarding parental rights. In some cases, a surrogate may change her mind and want to keep the baby, or the intended parents may face difficulties with legal parentage recognition.

Custody and Parental Rights:

In most cases, surrogacy agreements clearly define the intended parents’ legal rights to the child. However, if the surrogate has not relinquished her parental rights, the issue may need to be settled in court.

Immigration and Citizenship:

For international couples, securing citizenship or permanent residency for the child born through surrogacy can lead to legal challenges, especially in countries with restrictive immigration laws.

Example:

Imagine a situation where an intended parent and a surrogate mother disagree on whether to continue the pregnancy after the surrogate discovers a medical complication. The surrogate wishes to terminate the pregnancy for health reasons, but the intended parents wish to proceed with the pregnancy. The surrogacy agreement may specify that medical decisions are to be made by mutual agreement or that the intended parents have the final say. If they cannot resolve the dispute themselves, they may turn to mediation or, if necessary, arbitration to settle the issue before considering court action.