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If you’re an intended parent, you may be asking: Can a surrogate mother change her mind and keep the baby? Thankfully, there’s a definite answer: While it is very rare that a surrogate changes her mind, she definitely can’t keep the baby! This is especially true if you cover all the bases by working with a surrogacy agency that drafts an effective surrogacy contract and files all the necessary court paperwork. 

However, even if the surrogate mother has no legal right to keep the baby, she may still change her mind and create complications. A surrogacy journey should be fulfilling and transformative, not stressful and contentious. So let’s take a closer look at this question and go over what intended parents can do to make sure that this situation doesn’t arise in the first place. 

What Is The Legal Definition Of A Parent When It Comes to Surrogacy?

This may seem like a simple question, but it’s important to understand in the context of surrogacy. The parent is the person who takes custody of the child and then raises them. Usually, anyone who is genetically related to the child (the biological parent) automatically becomes the legal parent. 

However, there are two different kinds of surrogacy: traditional and gestational surrogacy. Let’s take a moment to summarize them: 

  • Traditional surrogacy – The surrogate mother is the biological mother (but not necessarily the legal mother) to the child. 
  • Gestational surrogacy – The surrogate mother is neither the biological mother nor the legal mother to the child. 


The question of “legal motherhood” becomes more complicated in traditional surrogacy. This is exactly why it’s actually illegal in multiple US states, including Arizona, Indiana, Kentucky, Massachusetts, Michigan, Nebraska, New Jersey, New York, North Dakota, Washington, and the District of Columbia. These states have banned this form of surrogacy to avoid any potential complications that may arise if a surrogate mother changes her mind. 

As a result, gestational surrogacy has become the preferred method, even in states where traditional surrogacy is not explicitly against the law. The fact that the surrogate mother is not genetically related to the child makes establishing legal parenthood that much easier.

In other words, the gestational surrogate mother does not have a right to keep the baby. However, with traditional surrogacy this is less crystal-clear, so that’s why it’s fallen out of favor in the past few decades.

What Is A Parentage Order? 

A parentage order is the legal process by which the intended parents establish that they are the legal parents. This prevents the surrogate mother from keeping the baby under any circumstances. 

These orders are filed in state courts, usually through the state’s Department of Vital Records (sometimes called the Bureau of Vital Statistics). In surrogacy-friendly states, like California, Oregon, Florida, North Carolina, or Texas, you can file a pre-birth parentage order (also known as a pre-birth order) before the baby is even born

In most cases, the parentage paperwork can start in the fourth month of pregnancy. By the fifth month, it’s finalized and the intended parents become the legal parents. Once that paperwork is approved, signed, and filed, then the hospital where the child is born is legally required to list the intended parents as the legal parents.  

What Are A Surrogate Mother’s Rights?

Although a surrogate mother has no right to keep the baby, she does have other rights, including:

  • Having health insurance.
  • Being informed of any medical procedures and/or medication side effects. 
  • Choosing which medical procedures she wants to have done (in some situations). 
  • Selecting her doctor and/or medical team, if necessary. 
  • Getting counseling and/or psychological help during or after the pregnancy. 
  • Receiving her surrogate compensation and/or reimbursements as outlined in the surrogacy contract. 


You can see that “retaining her parental rights” is notably absent! That’s great news for intended parents who might still be a little nervous about the surrogacy process. 

How Can Intended Parents Make Sure That The Surrogate Doesn’t Keep The Baby? 

affectionate pregnant surrogate touching her belly

Although surrogate mothers don’t have any legal right or legitimate claims to keeping the baby, there are still certain steps that intended parents can take to try and prevent this from even happening in the first place:

Ensure that the surrogate is properly screened

Finding the right surrogate mother is one of the most important steps in the entire surrogacy process. This will ensure that the surrogate is trustworthy, responsible, and certain of her decision – this helps avoid further complications down the road. 

This is precisely why there are strict requirements for becoming a surrogate. It’s a demanding job and it can take a serious toll on anyone who’s not prepared. Screening the surrogate will significantly decrease the chances that she’ll change her mind and try to keep the baby. 

Luckily for intended parents, this screening process is done by the surrogacy agency. They have effective methods and protocols to ensure that the surrogate is truly prepared for the task at hand. 

Work with a surrogacy attorney

Also known as a reproductive lawyer, a surrogacy attorney will help you avoid potential complications in the surrogacy process in the following ways:

  • They’ll make sure that everything is 100% legal according to the laws of your state.
  • All necessary court paperwork, including parentage orders and birth certificates, will be properly filed. 
  • They will also draft a surrogacy contract that protects you and explicitly stipulates the rights and expectations of all parties. 
  • They’ll interface with your surrogate’s lawyer since most states require intended parents and surrogates to have separate legal representation. 


Again, choosing a surrogacy agency is usually the best course of action since they’ll communicate with your attorney and worry about the logistics. 

Communicate regularly with all parties

Open lines of communication are essential to a successful surrogacy because they keep everyone on the same page and playing for the same team. If any doubts emerge, they can be promptly and constructively solved. This will also ensure that you’re being proactive rather than just reactive.

Remember, we’re all human and a person’s feelings can change. Besides, pregnancy can be an emotional rollercoaster! But it could be seriously stressful if a surrogate tries to change her mind, even if she doesn’t have any legal rights to the child. Strong communication can help you avoid this situation in the first place. 

Use a surrogacy agency

At the end of the day, the best way to have a smooth surrogacy journey is to find a surrogacy agency and work with them. They handle everything from surrogate screening to legal issues to emotional counseling. 

So If you’re asking yourself: Can a surrogate keep my baby? The answer is: No, definitely not. But even if the surrogate does not have a case at all, it can still be distressing to the intended parents! A surrogacy agency can help prevent these types of situations before they even come up. 

Surrogacy By Faith is based in California, although we work with people from all over the country. We take special pride in fostering strong relationships between the surrogates and intended parents. Creating this kind of atmosphere ensures that our surrogates are 100% certain and prepared for the birth.

Fill out our Intended Parents Inquiry Form or Surrogate Inquiry Form and get started right away!