The Role of the Surrogate’s Spouse in surrogacy law

The act of a woman carrying and giving birth to a child on behalf of another person or couple is known as surrogacy.

Women with specific medical issues that make it risky or difficult for them to become pregnant, carry the pregnancy, and give birth may be good candidates for entering the surrogacy program.

In Ukraine, the surrogate won’t be the child’s legal parent at birth both according to the surrogacy agreement and the law. If the surrogate is married, she might need her spouse’s consent for entering the program if it’s written in the agreement.

There are two orders that regulate establishing parental rights for surrogacy.

A parental order

The parental rights of the surrogate and her spouse are terminated by such an order, and the parental rights are transferred to the intended parent or parents. The legislation permits either one party alone or one party and a partner to file for a parental order. However, the application must be made within six months of the child’s birth.

The Role of the Surrogate's Spouse in surrogacy law

If filing jointly, at least one applicant must be the child’s genetic relative. The applicants must be married, in a civil partnership, or cohabiting with someone else. They must also have the kid live with them and stay continuously in the country of the surrogacy program’s execution.

Adoption order

The surrogate will have no further rights or duties to the child after obtaining a parental or adoption order. It should be emphasized that even if you are listed as the child’s legal parent on a foreign birth certificate, you will still need to file for a parental or adoption order when you return to your home country.

If there is any dispute over who the kid’s legal parents should be, the issue must be brought before the court, which will decide based on the child’s best interests.

Defining the role of the surrogate’s spouse in surrogacy law

The surrogate’s spouse is not medically involved in the surrogacy process. However, his or her opinion and actions play a significant role in the program.

In general, all surrogates must declare that they are either married, unmarried or divorced in order to become a surrogate. The legal status of the surrogate is important as it defines the role of her spouse in the surrogacy process.

A surrogate’s spouse is involved in:

  • forming a relationship with the intended parents, potentially spending social and family time with them;
  • being an integral part of the surrogacy agreement;
  • attending fertility appointments and counseling sessions or looking after the surrogate’s children while the surrogate does;
  • being fully engaged with the professionals supporting the surrogacy process, such as the agency, counselors, fertility clinic professionals, and lawyers advising the surrogate;
  • hands-on support at home with household jobs during the pregnancy;
  • attending the birth as a birth partner or looking after the surrogate’s children during that time;
  • being there for the surrogate after the birth as life slowly returns to normal;
  • being the surrogate’s sounding board and advocate, and garnering any extra support if she needs it.

The involvement of a surrogate’s partner is encouraged and starts right at the beginning of the surrogacy process. The spouse will be part of the preparation process as well as the match with the intended parents.

Consent and agreement of the surrogate’s spouse

A spouse will be impacted by their partner’s decision to become a surrogate since it will affect their time and energy as a mother and as a spouse during this journey. Before proceeding, the surrogate requires his approval.

This is where consent becomes crucial. First, a prospective surrogate has to do her research and explain in detail how the process will go to her spouse. This is highly important to achieve agreement and consent from the partner.

The Role of the Surrogate's Spouse in surrogacy law

If you plan an international surrogacy, you might need a fertility lawyer to assist you as fertility laws vary significantly among the countries. For example, in Ukraine, only the intended parents and the surrogate are a part of the surrogacy agreement, excluding the surrogate’s spouse from any decisions made about the pregnancy. But, in order to maintain healthy relationships within the couple, it is highly recommended to explain everything in detail and involve the spouse in the surrogacy process through his consent.

Spousal support during the surrogacy process

It is anticipated that the surrogate may not feel well or have as much energy as normal throughout the pregnancy, which means her partner may need to assist with more daily tasks around the house and with their own children.

Friends, relatives, acquaintances, and even complete strangers frequently have a lot to say about any pregnancy, and when surrogacy is involved, there are even more inquiries and remarks. The spouse might be questioned about the pregnancy and his excitement for starting a family. Both of spouses need to be ready to respond to these inquiries and to discuss surrogacy with others.

Also, the surrogate’s lifestyle changes completely with the pregnancy. With that in mind, it’s crucial that she has enough support for her daily activities ‒ primarily, from her spouse.

Possible challenges

Being a partner to a surrogate may impact one in many ways. First of all, there are a few legal challenges that need the surrogate’s partner’s attention. For example, some countries allow surrogacy only with the agreement of the surrogate’s spouse, and some need his consent to proceed with the program. Also, if the surrogacy agreement states so, a surrogate’s spouse must abdicate his parental rights over the surrogate-born child (although this is a very uncommon indication).

In most popular destinations, however, the spouse is not involved in the legal part of the surrogacy program.

The Role of the Surrogate's Spouse in surrogacy law

The emotional part, however, is always present. As a partner of a pregnant surrogate, the spouse might experience certain challenges that include changes in the lifestyle, extended emotional support for their partner, and some emotional hardships through the journey. Aside from the emotional challenges of the pregnancy, surrogacy will have additional emotional challenges.

However, the impact on the relationship between the surrogate and her spouse is difficult to predict. In most couples, surrogacy is a consented choice where both spouses agree on the decision. Being in touch with the intended parents might be an additional emotional factor, as a relationship between the surrogate, her spouse, and the intended parents is highly important for legal and emotional factors of the surrogacy program’s success.

In conclusion, the legal role of the surrogate’s spouse varies depending on the country where the surrogate resides. The more universal impact is carried by the emotional support of the spouse during the surrogacy process.