Surrogacy Basics for Louisiana Residents
Louisiana is a state like most others in that there is no written guide or codified statute that clearly outlines and informs those involved in surrogacy of their rights and the enforceable aspects of this process. With that said, Louisiana governing law and the analysis of various cases pertaining to surrogacy has resulted in some sort of understanding of how Louisiana Courts will review and determine cases in these matters. It is still uncertain how far Louisiana Courts will go to interpret current law , though the general consensus is that the courts will not attempt to assist intended parents and/or surrogates in any manner that would go outside of Louisiana codified law. The intent of this overview is to give intended parents and gestational surrogates a better understanding of how Louisiana Courts will review a surrogacy case should a dispute arise. Specific issues that typically arise include the right of either party to compensation or reimbursement.
Louisiana Surrogacy Law
Surrogacy arrangements in Louisiana are specifically authorized by the Louisiana Children’s Code. Louisiana Children’s Code, Title XII – Parentage Articles 2501 through 2576. The law applies to surrogacy agreements entered into after Jan. 1, 2015. Although the law became effective in 2015, at least one court had recognized the validity of a surrogacy agreement prior to the enactment of the law. Swanson v. St. Charles Parish Hosp., 946 So.2d 266 (La.App. 5th Cir. 12/28/06).
Following the enactment of the surrogacy legislation, Louisiana clearly allows commercial surrogacy contracts for intended parents. In addition, Louisiana provides for a streamlined adoption process for surrogacy arrangements in which the genetic mother and the gestational carrier are not the same person. Under Title XII, a genetic donation contract entered into between an intended parent and a gestational carrier or a genetic mother can be filed for court approval. The contract must be signed by the intended mother and father, the gestational carrier and her spouse, and the donor, as well as by a physician, an attorney and a notary public.
The law requires surrogate parents to obtain identification documents and is intended to protect from disclosure the identities of all parties involved. A physician must also complete a medical evaluation of the gestational carrier in compliance with the law’s medical guidelines. A gestational carrier who undergoes an embryo transfer must do so with the consent of a gestational surrogate psychologist who evaluates both the surrogate and the intended parents.
Commercial surrogacy contracts are legal provided they are approved by a Louisiana court and comply with Louisiana law. In commercial surrogacy arrangements, a birth certificate issued by a state may allow the names of the parents who contributed the sperm and/or eggs to be listed as the legal parents of the child despite the absence of a blood relationship. If the parties were correctly transparent with the judge and the process is complied with, the birth certificate will correctly reflect the intended parents as the parents of the child.
Local practice in Louisiana is for commercial surrogacy contracts to be handed to certain local judges for review. Commercial surrogacy contracts should also comply with the Louisiana Children’s Code. The surrogate fee and allowances should not exceed the cost of medical expenses, traveling expenses and reasonable fees. Commercial surrogacy contracts may be approved in New Orleans. In these cases, a procedure beyond the non-judicial procedure must be followed before the judgment can be rendered. However, surrogacy contracts are allowed statewide in Louisiana.
To be enforceable, commercial surrogacy contracts must comply with Louisiana law. A commercial surrogacy arrangement requires the surrogate mother to relinquish all of her parental rights in accordance with the law. The intended parents’ names may appear on the birth certificate of the child rather than that of the surrogate mother and her spouse if the surrogate mother is married. In these cases, custody of the child is transferred to the intended parents.
Juridical Status of Different Types of Surrogacy
The Louisiana Surrogacy Statute defines a "Gestational Carrier" as a woman who is bearing a child conceived through assisted reproductive technology using an embryo from another person or persons who has been implanted in her by a licensed physician.
A "Traditional Carrier" is defined as "a woman who is a surrogate and who uses her own egg and is artificially inseminated with the sperm of an intended father or a donor."
Louisiana law specifically prohibits "Traditional Surrogacy". La. R.S. 9:2715(G). It allows for the use of sperm, egg or embryo donation provided the other appropriate requirements of the statutes is satisfied. However, traditional surrogacy in Louisiana involves the use of the carrier’s own eggs and is prohibited as stated above.
Gestational Carriers using a gestational arrangement contract may be compensated by the Intended Parents for any of her reasonable pregnancy-related expenses like medical costs not covered by insurance, lost wages, transportation costs, lost wage replacement, day care or other childcare, nutritional counseling and maternity clothes. However these expenses cannot be specifically calculated based on the actual costs or expenses incurred. The contract must state, or be deemed by the court, that the carrier will be fully reimbursed for these reasonable expenses after the birth of the child and, therefore, the contract cannot be punitive in nature. La. R.S. 9:2715(E)(2).
Louisiana law is very specific on who can be compensated for placing an infant for adoption or any violation of this restriction is a crime. However, it does not restrict the payment of actual expenses of the gestational carrier as noted above. The law does state that no compensation may be provided for the placement, adoption or delivery of a child or for the surrogate’s relinquishment of the child to the surrogate’s intended parents or those intended parent’s relatives or representatives. La. R.S. 9:2715(F).
Traditional surrogacy does not address compensation of any kind.
Lawful Surrogacy Must Fulfill Certain Legal Requirements and Restrictions
In Louisiana, surrogacy must take place pursuant to a contract; a "gestational surrogacy agreement" which prohibits a surrogate from using the eggs of her own body. (La. R. S. A. § 9:2718). Thus, Intended Mothers and Intended Fathers alike can rest assured that they will have all parental rights to the child born of the surrogate, provided that the contract is executed in accordance with Louisiana law.
Rather than trying to find a surrogate in Louisiana, Intended Parents often find it easier to locate one more easily in another state. Unfortunately, many other states do not have such well defined laws regarding surrogacy. In fact, most other states only create legal parental rights for Intended Parents if the surrogate donates her eggs, otherwise surrogacy contracts are unenforceable, even with a traditional surrogacy contract. A traditional surrogacy contract is based upon the agreement that the surrogate will provide her own egg, to be fertilized by the Intended Father’s sperm. In these cases, the surrogate can retain a claim over the child she births, as her name is on the birth certificate. [60-B Am. Jur. 2d Parent and Child, § 1454]
That does not mean that surrogacy in other states is impossible; it just requires some additional legal maneuvering. The Intended Parents can proceed with a claim to adopt the minor child upon the birth of the child in Louisiana. Some state laws regarding surrogacy will simply require the Intended Parents to take their surrogate’s husband, or former husband’s name as a second parent, and obtain an amended birth certificate upon completion of the adoption proceedings (15 Am. Jur. 2d Bastards, § 8). However, nearly every state that has laws recognizing surrogacy require their laws to be followed, or that the Intended Parents be residents of their state. [60-B Am. Jur. 2d Parent and Child, § 1454]
The surrogate in the state where the contract is formed will be required to relinquish her parental rights, so that the Intended Parents may then enforce their surrogacy agreement.
Enforceable Surrogacy Trusts vs. Surrogacy Contracts
Most of the uncertainties surrounding the legality of surrogacy in Louisiana involve whether a given contract is enforceable based on the statutes that apply to surrogate births in Louisiana. Due to the lack of judicial and legislative determinations statewide, this is an open question. The fact that no particular procedure must be followed for a surrogate birth provides a vague category of rules and guidelines to consider.
The law is ambiguous as to whether a birth order can be used to establish parentage or whether it is necessary for both biological parents to petition the court. Lawsuit decisions post-2015 have been largely immaterial. As Louisiana is a non-gestational state under R.S. 9:421 , there are few judicial decisions interpreting the contact requirements, enforcement terms, and the determination of parentage issues surrounding enforcement.
In order to prevent litigation and possible challenges to the decree, obtaining a judgment from the court that specifically mentions all of the parties’ rights and obligations and "sets out the procedures to be followed before, during, and after the birth" will protect all involved. Structuring the contract well and providing language in the contract about the right to adopt by consent if a gestational surrogacy is not recognized will maximize full protection.
Parental Rights and Legal Obstacles to Surrogacy
Under Louisiana law, parental rights for children born through surrogacy are typically granted immediately after birth, once the surrogate mother turns the child over to the intended parents. In other words, while the surrogate is pregnant, she does not have parental rights over the child, even if she is carrying the child and it is biologically her own (in cases of "traditional surrogacy," where the surrogate uses her own eggs). Instead, parental rights are vested immediately upon the birth of the child.
Parental rights in gestational surrogacy are different. In gestational surrogacy, the "intended parents" provide an egg and sperm (or sometimes use a donor egg and/or sperm) for the surrogate to carry the child. The surrogate – at the request of the intended parents – also receives various fertility treatments to prepare her body to carry the child (such as medications to encourage her body to accept the implanted embryo). Once the child is born, the intended parents then assume parental rights.
However, sometimes, challenges to parental rights come up. For instance, sometimes intended parents do not follow the laws perfectly. They may forget to get a judicial pre-birth order, or they may fail to notify the gestational surrogate that she is the biological mother (sometimes the gestational surrogate may have no idea she is genetically related to the child). In some cases, like in "traditional surrogacy," the surrogate could change her mind about the surrogacy, and want to keep the child herself. In these cases, the intended parents may have a legal action to affirm their parental rights.
Why Consult With a Louisiana Surrogacy Attorney
To ensure that your rights and the rights of the birth mother are fully protected, it is critical to obtain legal counsel from an attorney who is experienced in the practice of family law and surrogacy in Louisiana. Each state has complicated laws surrounding the issue of surrogacy and Louisiana is no exception. The area of surrogacy law is primarily governed by the decisions of state courts rather than statutes , therefore, without an experienced attorney, you may not be aware of how to proceed.