Surrogacy New Hampshire

Imagine that a married couple living here in New Hampshire has decided they want children. One of the spouses, unfortunately, is infertile, or perhaps the wife for a variety of possible reasons is unable to carry a fetus to full term. It is estimated that fully 15 percent of Americans, meaning at least 10 million individuals, have issues dealing with infertility. Thus, the New Hampshire couple are not alone in their predicament. The traditional option the couple has available to them is of course adoption. However, there is scarcity of adoptable infants that makes this option a difficult one. Happily, they can also choose from a host of alternative reproductive methods that are now commonly available.

In this scenario, the infertile husband is legally presumed to be the father of the child, despite his lack of genetic connection between the two, and as such has full rights and responsibilities of parenthood. Conversely, the sperm donor, according to law, would have to support the resulting child only if he signs an agreement to that effect. Furthermore, before becoming an actual donor he must have taken and passed an extensive medical evaluation.

The Surrogate Agreement

Issues of parenthood are somewhat more complicated in cases of an infertile woman who chooses to enter with her husband into an agreement with a surrogate to bear their child. Depending upon circumstances, the surrogate agrees to be impregnated using either the intended father's sperm or the couple's fertilized embryo, fertilized most likely in vitro. Technology now is such, however, that the surrogate birth mother may serve merely as the incubator, with absolutely no genetic similarity between her and the child she bears to term.

Regardless of the methods used, there are two maternal players: the surrogate mother who agrees to fulfill the biological function of bearing a child for the couple and whose relationship with the child ends at birth; and the intending mother, who may if possible donate her fertilized egg to the surrogate, and who later fulfills the role as parent in rearing the child. The problem, in essence, is that our laws have always considered the woman who gives birth to a child as that child's mother, with all the attendant rights and obligations that come with that status.

In an attempt to catch up, so to speak, with new medical technology, New Hampshire has passed a law governing surrogacy. This law, RSA 168-B, also attempts to control a situation that is rife with potential for exploitation and abuse. Surrogacy, after all, deals with real humans and not barnyard animals. The surrogate mother, the intended parents, and the resulting child, are all potentially vulnerable to victimization.

A surrogate agreement, therefore, is not one that is entered into lightly. There are many things to be considered and all of the decisions that the intending parents make are an investment in the conception process, including most importantly their choice of surrogate. Therefore, it would be courting disaster if the couple did not enlist the services of an attorney to draft the contract, spelling out the specific rights of the parties. The surrogate should also have an attorney, paid for by the intended parents, to ensure that her rights also are addressed in the agreement.

New Hampshire surrogacy law does not presume that conflicts will develop between the parties, but it does anticipate the possibility. Therefore, it is very specific in its requirements. For example, all parties to the surrogate contract must be at least 21 years old. Furthermore, the sperm donor, the intended mother, and the surrogate must be medically evaluated. Not only must the surrogate be found able to bear a healthy child, but the intended mother must be found physically incapable of bearing of child. The parties must also receive genetic counseling if the surrogate is 35 years or older. Also, the surrogate must have a documented history of at least one successful pregnancy, including a viable delivery.