Arizona law prohibits the use of legal contracts between couples and surrogates who agree to give birth on behalf of the couple.
But such arrangements routinely occur in Arizona between “intended parents” such as U.S. Rep. Trent Franks and willing surrogates who agree to carry an individual’s or couple’s child.
Arizonans can obtain a court order declaring them the legal parents of a child born through surrogacy.
Franks announced his intended resignation this week after the House Ethics Committee disclosed it would investigate whether he pressed two aides to carry his child in surrogacy. At one point, Franks offered to pay one aide $5 million to act as a surrogate, the Associated Press reported Friday.
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In 1994, an Arizona appellate court ruling allowed “intended parents” to rebut Arizona’s state law, which presumes that a surrogate mother is also the legal mother of the child.
Based on that court ruling, couples and individuals began to routinely petition Arizona courts for an order declaring them the legal parents of a child born through a surrogate. In some cases, a judge will issue an order even before the child is born.
Dan Ziskin, a Phoenix attorney who advises couples and individuals on surrogacy issues, said he generally does not recommend intended parents and surrogates enter surrogacy contracts if everyone lives in Arizona. That’s because such contracts are not enforceable under Arizona law.
However, doctors who perform fertility services typically recommend intended parents and surrogates contact an attorney in advance of a surrogate arrangement, Ziskin said.
“The doctor wants to make sure everybody understands what Arizona law is, what everybody is to do, and what everyone’s expectations are,” Ziskin said.
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The term surrogate can describe a range of circumstances.
It could involve a married or unmarried heterosexual couple who use their own egg and sperm, but the embryo is carried through birth by a surrogate mother. Under such a scenario, the couple can obtain a court order declaring them parents of the child, even before birth, according to Creative Family Connections, a Maryland-based law firm.
A heterosexual or a same-sex couple that relies on donated eggs or sperm to have a child may not be able to obtain a pre-birth court order declaring them each parents. Such cases may require an adoption after the child is born, according to Creative Family Connections.
In cases when “intended parents” have no genetic relation to the child, they generally adopt the child after birth, Ziskin said.
Each state has its own laws on surrogacy, making it a hodgepodge of rules and requirements, particularly when one party lives out of state.
The rush to legislate surrogacy stemmed from the New Jersey case of Baby M, a pseudonym given an infant who became the subject of a custody battle. A surrogate mother who agreed to carry the child on behalf of a couple changed her mind and sought custody after the child was born.
Arizona’s surrogacy case in 1994, Soos v. Maricopa County Superior Court, stemmed from a divorce case involving a couple whose triplets were born through a surrogate. The eggs were from the mother, fertilized with the father’s sperm through in-vitro fertilization and implanted in a surrogate.
Before the triplets were born, the mother filed for divorce and requested shared custody of the unborn triplets. The father, however, claimed that his then-wife had no legal standing for custody because the surrogate was the legal mother under the state law.
After the triplets were born, Maricopa County Superior Court declared Ronald Soos the natural father and awarded him custody. But the court also awarded then-wife Pamela Soos visitation rights.
On appeal, the wife challenged the constitutionality of the law. The appellate court agreed with her, ruling that Arizona’s surrogacy law violated her equal-protection rights under the U.S. and Arizona constitutions.
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