Surrogacy is often described as a beautiful partnership built on trust, compassion, and careful legal planning. But one question that frequently worries intended parents is: What if the surrogate decides to keep the baby? While such cases are extremely rare, it’s important to understand how the law handles them, how different countries treat surrogacy, and what steps families can take to prevent complications.
How Common Is This Situation?
Despite the dramatic headlines, surrogates keeping the baby is very rare. Most surrogates enter the journey after thorough psychological screening, informed consent, and with strong motivations to help others become parents. In countries with well-regulated surrogacy laws, legal safeguards are in place to minimize risks.
Legal Perspectives Around the World
United States
- In surrogacy-friendly states like Texas, courts issue pre-birth orders that establish the intended parents as the legal parents before the baby is even born.
- In the landmark case Johnson v. Calvert (1993), the California Supreme Court ruled in favor of the intended parents when a surrogate attempted to claim parental rights.
- In most regulated states, the surrogate has no legal claim to the baby once contracts and court orders are in place.
United Kingdom
- Surrogacy agreements are not legally enforceable.
- By law, the woman who gives birth is the baby’s legal mother, even if she is a surrogate.
- Intended parents must apply for a Parental Order after birth, which requires the surrogate’s consent. If the surrogate refuses, the courts will decide custody based on the child’s best interests.
Australia
- Similar to the UK, only altruistic surrogacy is allowed.
- The surrogate is considered the legal mother at birth, and intended parents need a court order to transfer parental rights.
- If the surrogate refuses, the dispute goes to court.
India
- Under the Surrogacy (Regulation) Act, 2020, the surrogate has no parental rights after the baby is born. The intended parents are the legal parents by law.
Countries That Ban or Restrict Surrogacy
- In places like Singapore or Japan, surrogacy is either banned or not legally recognized. In these cases, the woman who gives birth is always the legal mother, regardless of genetics.
Real-Life Cases
- Johnson v. Calvert (U.S.): The court sided with the intended parents, emphasizing that the contract and genetic connection defined parenthood.
- UK and Australian cases: There have been instances where surrogates changed their minds. Courts usually decide in favor of the intended parents, but the process can be lengthy and emotionally draining.
How to Protect Against This Risk
- Choose a surrogacy-friendly jurisdiction
Work in states or countries where surrogacy is legally recognized and supported by clear legislation. - Have a strong legal contract
Contracts should outline expectations, rights, and responsibilities before the process begins. - Secure court orders
In the U.S., pre-birth or post-birth orders clarify parental rights and prevent disputes. - Work with experienced professionals
Agencies, lawyers, and mental health professionals screen surrogates to reduce the risk of conflict later. - Prioritize trust and communication
A positive relationship between surrogate and intended parents often makes legal disputes unnecessary.
Final Thoughts
The fear of a surrogate keeping the baby is understandable—but in reality, it is exceptionally uncommon. With proper legal safeguards, psychological support, and clear communication, intended parents can feel secure. The key is to pursue surrogacy in places where the law protects all parties and ensures that the baby’s best interests remain the top priority.
