Surrogacy and Divorce: What Happens to Existing Contracts?
Life circumstances change, and one of the more legally complex scenarios in surrogacy arises when intended parents’ divorce or separate during an active surrogacy arrangement — before, during, or shortly after the pregnancy.
If Divorce Happens Before Embryo Transfer
If intended parents separate before transfer has occurred, most Gestational Carrier Agreements can be terminated or amended relatively cleanly, since no pregnancy or parentage claim yet exists. However, any embryos already created may become subject to separate legal disputes, particularly if they involve both former spouses’ genetic material — this is a distinct and often contentious area of family law.
If Divorce Happens During Pregnancy
This is significantly more complex. The original Gestational Carrier Agreement was signed by both intended parents, and both are still expected to fulfill their parentage obligations toward the child, regardless of the state of their marriage. Courts generally hold that the parties’ intent at the time of signing — to become parents together — governs the parentage outcome, even if the marriage doesn’t survive the pregnancy. However, the specific legal outcome can depend heavily on state law. Each Intended Parent will be required to hire separate legal counsel at this stage if they are seeking legal advice against the other. The attorney who assisted them will be conflicted out from giving advice to either intended parent against the other.
Custody and Support Considerations
Once the child is born, the divorcing intended parents will need to address custody, visitation, and child support just as any divorcing parents would — but with the added complexity of having become parents through a surrogacy arrangement rather than through pregnancy together. This makes coordination between family law counsel and surrogacy law counsel essential.
Protecting Against This Scenario in Advance
While no one enters a surrogacy journey expecting divorce, experienced attorneys can include specific contingency language in the original Gestational Carrier Agreement addressing what happens if the intended parents’ relationship changes during the process — reducing uncertainty for the carrier and clarifying expectations for both intended parents from the outset.
The Bottom Line
Divorce during a surrogacy arrangement doesn’t have a simple, one-size-fits-all answer. It requires careful legal analysis of the original contract, applicable state law, and family law principles working together.
If you’re facing this situation or want contract language that anticipates it in Nevada, California, or Utah, contact Surratt Law Practice at 775-636-8200 or visit www.LawyersForFamilies.
Kim Surratt
