Surrogacy Agreements

Parties can legally enter into agreements that require a surrogate mother to relinquish parental rights when giving birth on another couple's behalf. The use of these agreements protect couples who cannot have children on their own and who want to use a surrogate to carry their child through the use of an assisted reproductive procedure, such as in vitro fertilization.

TIP: Laws authorizing the use of surrogacy agreements have not been enacted in all states.

Can the birth mother find adoptive parents without breaking the law?

Yes. The birth mother, her parents or guardian, or other close relative may seek out adoptive parents.

Can an adopted child sue the placement agency if they were placed in an unfit home?

Yes. It may be possible to file a lawsuit against an agency for negligent placement, if the agency did not fulfill its responsibilities to investigate the adoptive parents.

Sidebar: Once the adoption is finalized, the placement agency has no duty to continue to supervise, investigate, or protect the child. Of course, the placement agency (typically the state's child protective service agency) has a duty to protect the welfare of a child in foster care prior to adoption.

Can an adoption agency charge a fee for placing a baby?

Yes. A private placement agency may charge for its actual fees and expenses, and is allowed to establish a sliding scale based on the adoptive parents' gross income. The formula varies according to state laws.

Laws prohibit charging fees unrelated to the adoption. Adoption-related fees are typically limited to the birth mother's medical and legal expenses, plus other expenses incurred as a result of pregnancy (maternity clothes, for example). An adoption agency can also charge prospective parents for legal fees the agency incurs, an application fee, the cost of required home studies and reports, the cost of parental training, and the cost of counseling to all the parties involved.

Sidebar: There are laws that list allowable birth mother expenses. Payment of the following expenses are generally permitted:

  • living expenses such as rent, food, utilities, and clothing (typically there is maximum per month);
  • medical expenses including prenatal care, delivery, and other pregnancy-related medical expenses (post pregnancy medical care for a number of weeks is usually allowable);
  • transportation to access medical, legal, counseling and adoption services;
  • legal services related to the termination of parental rights and adoption process;
  • counseling to assure that the mother is aware of her rights and is not being coerced; and
  • expenses relating to educational, vocational, recreational, and religious services up to a certain amount.

What does a birth mother have to pay to give a baby up for adoption?

Nothing. A birth mother is never charged a fee. The adopting parents pay for all expenses.

Sidebar: Paying a birth mother's expenses is not the same as "purchasing" a baby, which is illegal. Paying the birth mother a lump sum after the child is born equates to buying the baby. Additionally, "cash up front" is typically considered an illegal payment.

My spouse wants to adopt a child and I do not. Can they adopt the child on their own?

No. Since you are his spouse, you are required to participate in the adoption. When one of the parties is married, the petition to adopt must include both spouses.

Can same-sex couples adopt a child?

Yes, though laws vary from state to state.

Can a child be "unadopted?"

Since adoption is a legal process, and legal processes can be undone, some state laws may allow adoptive parents to revoke the adoption. We suggest you review your applicable state law.

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