Single Parent Surrogacy Considerations

Pursuant to The Times of India, on April 23, 2025, “Bombay high court on Monday directed that a 36-year-old divorced mother, who is medically unable to bear a child any more, may approach Supreme Court where a similar issue of single woman seeking permission for surrogacy is pending.”  This legal challenge in India stems from the fact that the laws in India regarding surrogacy (i.e. Surrogacy (Regulation) Act) pertain to “intended couples”, and does not contemplate a single intended mother, hence, raising legal concerns for single intended mothers pursuing surrogacy in India. The ban on single parent surrogacy in India raises the question as to what challenges are faced by single intended parents generally speaking when pursuing surrogacy.

Single parents pursuing surrogacy in the United States face unique challenges across various aspects, which may include:

1. Legal Considerations:

Each state has different laws or regulations regarding surrogacy and the parentage proceedings involved deeming the intended parent as the legal parent vary based on the applicable state law. It is critical for a single intended parent to speak to an experienced surrogacy attorney at the beginning of their journey to best understand what state has favorable laws regarding single intended parents. A good rule of thumb for what state law applies is where the birth is occurring, however, there are possibly other exceptions that permit other state laws such as the location of the intended parent or the clinic (allowing these connections to use an applicable state are only if permitted by the applicable state law).

Pursuant to the guidelines established by the American Society for Reproductive Medicine, “Laws relevant to GC arrangements vary from state to state and may also change, as to both legal parentage and conduct of the participants. It is imperative that each participant or participant couple, meaning the GC with any spouse, and any single IP or partnered IPs in a GC arrangement, have independent legal counsel who is licensed in the applicable state, to represent, advise, and assist them before entering into a GC agreement and in executing a legal agreement.”

International single intended parents pursuing surrogacy in the United States need to consider the laws in the United States and the laws in their home country to ensure they will not have any issues confirming their parental rights in the United States and back home. An international single intended parents should work with an experienced surrogacy attorney in the applicable state in the Untied States and an attorney in their home country and those lawyers should communicate to ensure a smooth legal process for the single intended parent. The international surrogacy attorney may require certain language in the U.S. court pleadings or apostilled documents which the attorney in the United States will only know to include if instructed by the international attorney.

Another legal consideration that is important for all intended parents to consider, and very notably for a single intended parent, is to ensure that the intended parent has a proper estate plan in place which includes (in part) a nomination of a legal guardian for the child. While many surrogacy agreements mention an appointment of guardian selected by the intended parent if something happens to the intended parent (i.e. death or incapacity of the intended parent), a surrogacy agreement is not a proper estate plan. State laws may govern certain signing requirements or language to include to have a fully effective estate plan. If something were to happen to the intended parent during or after the pregnancy (i.e. death or incapacity), it is important that the intended parent’s wishes are respected as to who would be the legal guardian for the child as the surrogate is not going to be the legal parent of the child. Estate planning laws are typically governed by the law of the home state of the intended parent. Ideally, having an estate plan in place prior to the embryo transfer is important to ensure that the estate plan is established prior to the pregnancy as anything can happen post-embryo transfer.

2. Financial and Emotional Considerations:

Gestational surrogacy is an emotional process for all intended parents, including single intended parents. The psychological evaluation at the beginning of the surrogacy journey is critical for a single intended parent to fully think through all of the emotional components involved with the surrogacy journey.  Many times the psychological evaluation includes an evaluation session with the intended parent, a separate evaluation of the surrogate and her spouse/partner, and then a joint session of all parties together. Each step in the psychological counseling process is important, a best practice to follow, and in fact, required by certain state laws.

Given the cost of surrogacy, it is important for any intended parent, including single intended parents, to ensure that they have budgeted for the known and unknown costs involved in surrogacy. The expenses include, in part, the medical expenses, payments to the surrogate governed by the surrogacy agreement, and all of the expenses and medical care of the child once born which will be the responsibility of the intended parent. Funds paid to the surrogate and certain third parties are typically held in a third-party escrow account. An intended parent needs to budget for how much money will be deposited into the escrow account, when funds need to be deposited, the minimum balance that must be maintained in the escrow account, and how long the funds will need to remain in escrow after the delivery or conclusion of the surrogacy agreement.

3. Social Perception:

Some arguments against surrogacy for single parents as reflected in the basis for the laws in India include concerns about the child's welfare and the potential for exploitation. While these concerns are unfounded and unsubstantiated, a single intended parent should discuss any concerns they have about societal feelings about single parenting with their mental health professional to ensure they have a confident approach regarding their path to parenthood.

4. Support Systems:

Having a strong support system is really helpful for anyone pursuing surrogacy. It is a big endeavor and hard to go through alone. Having good support such as family, friends, an intended parent support group, or speaking with an experienced mental health professional for a single intended parent can alleviate the stress involved with the process. There are also organizations that focus on support for single intended parents such as Single Mothers by Choice (“SMC”) that can provide a helpful support system. Pursuant to the Single Mothers By Choice website, “Our members benefit from SMC peer support all over the US, and in Canada, Europe, and beyond, both through local chapters and/or through our active 24/7 online private Discussion Forum and Newsletters. We are delighted to share our experiences, wisdom, and resources about single motherhood by choice, including Forum topics like Thinking, Planning and Preparing to Become an SMC, Donor Insemination, Dating, Parenting (from infants to kids in college, and beyond!). There are also Cohort threads for those trying to conceive in the same cycle, and for those with a due date in the same trimester.”

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