Custody of a child born to a surrogate in Arizona isn’t automatic

Every year in Arizona, countless surrogates carry babies for parents who either can’t or don’t want to carry their own child. Many moms and dads enter into contracts with their surrogates to protect their interests despite there being laws on the books that prohibit parents from signing legal contracts between themselves and someone else birthing their child.

It wasn’t until an appellate judge’s ruling in 1994 that “intended parents” began pushing back against Arizona’s parentage laws. Before that ruling, the woman that a child was born to was considered to be its legal mother.

Nowadays, biological moms and dads need only to petition a judge for a court order to be declared as legal parents to the child that the surrogate gives birth to.

In some instances, judges will even allow moms and dads to file this parental order before the actual birth occurs. If they do, then they’ll award custody then. This is most often permitted when the couple decides to use a gestational surrogate, or someone to carry their own fertilized embryo.

Couples who choose to use donated sperm or eggs are generally ineligible to receive a court order before the child’s birth, but instead, must adopt them after they’re born.

Although contracts between intended parents and surrogates aren’t legally enforceable in Arizona, fertility clinic doctors often require them to sign an agreement with one another so each party understands their role from a big picture perspective. Prospective parents who are considering using a surrogate should discuss their plans with a Phoenix child custody attorney so that they’re prepared for what’s to come after the baby’s birth.