The legal aspects of surrogacy in any particular jurisdiction often hinge on a handful of central concerns:
Are surrogacy agreements enforceable, void, or prohibited? Does it make a distinction whether the surrogate mother is paid (commercial) or basically reimbursed for expenditures (altruistic)?
What, if any, difference does it make no matter whether the surrogacy is standard or gestational?
Is there an alternative to post-birth adoption for the recognition from the intended parents as the legal parents, either just before or just after the birth?
Even though laws differ widely from 1 jurisdiction to another, some generalizations are feasible:
The historical legal assumption has been that the woman giving birth to a kid is that child's legal mother, as well as the only way for yet another woman to become recognized as the mother is by means of adoption (ordinarily requiring the birth mother's formal abandonment of parental rights).
Even in jurisdictions that do not recognize surrogacy arrangements, if the genetic parents along with the birth mother proceed without having any intervention from the government and have no changes of heart along the way, they are going to likely be capable of accomplish the effects of surrogacy by having the surrogate mother give birth after which give the kid up for private adoption towards the intended parents.
If the jurisdiction specifically prohibits surrogacy, however, and finds out about the arrangement, there may well be monetary and legal consequences for the parties involved. A jurisdiction issue (Quebec) prevented the genetic mother's adoption with the kid although that left the kid with no legal mother.
Some jurisdictions especially prohibit only commercial and not altruistic surrogacy. Even jurisdictions that do not prohibit surrogacy could rule that surrogacy contracts (commercial, altruistic, or both) are void. If the contract is either prohibited or void, then there is certainly no recourse if party for the agreement has a modify of heart: If surrogate changes her mind and decides to help keep the kid, the intended mother has no claim for the child even if it's her genetic offspring, and they cannot get back any capital they may have paid or reimbursed towards the surrogate; If the intended parents alter their mind and do not want the child after all, the surrogate cannot get any reimbursement for expenses, or any promised payment, and she will left with legal custody with the child.
Jurisdictions that permit surrogacy sometimes give a way for the intended mother, in particular if she is also the genetic mother, to be recognized as the legal mother without going via the approach of abandonment and adoption.
Typically this can be by way of a birth order in which a court guidelines on the legal parentage of a kid. These orders ordinarily call for the consent of all parties involved, often which includes even the husband of a married gestational surrogate. Most jurisdictions only supply for a post-birth order, often out of an unwillingness to force the surrogate mother to give up parental rights if she modifications her thoughts soon after the birth.
A number of jurisdictions do give for pre-birth orders, commonly only in instances when the surrogate mother is not genetically connected towards the expected kid. Some jurisdictions impose other requirements in an effort to concern birth orders, one example is, that the intended parents be heterosexual and married to one more. Jurisdictions that supply for pre-birth orders are also far most likely to supply for some type of enforcement of surrogacy contracts.