Legal Aspects of Surrogacy - Mississippi

In Mississippi, the legal landscape of gestational surrogacy is shaped by the absence of specific statutes or established case law directly addressing it. This situation effectively renders surrogacy a legal and practiced option for those seeking to start or expand their families through this method. This overview aims to illuminate the general principles and practices surrounding surrogacy in Mississippi, though it's important to note that this is not legal advice. Engaging with a knowledgeable attorney is crucial for navigating the complexities of each unique surrogacy journey.

Key Aspects of Surrogacy in Mississippi

Legality of Gestational Surrogacy

Gestational surrogacy is permissible in Mississippi due to the lack of statutory prohibition. The state's courts tend to be more accommodating towards married couples, particularly when one partner is genetically connected to the child. Nevertheless, each case's outcome is subject to the discretion of the individual court and judge.

Traditional Surrogacy Scenario

Traditional surrogacy, where the surrogate is also the biological mother, is not explicitly prohibited in Mississippi, thus considered legal. However, it involves more legal and emotional complexities, which makes it a less favored option for many intended parents.

Compensated Surrogacy

Compensated surrogacy agreements are legal in Mississippi. Surrogates typically receive compensation for their commitment, medical risks, and various related expenses, all of which are outlined in the surrogacy contract. Compensation generally includes:

• Medical Expenses: Covering all pregnancy-related medical costs.

• Living Expenses: Monthly allowances for living costs during pregnancy.

• Lost Wages: Compensation for any income lost due to pregnancy-related health issues.

• Travel Expenses: Costs associated with travel to and from medical appointments.

• Insurance: Health and life insurance coverage.

• Legal Fees: Expenses for legal representation.

• Miscellaneous Costs: Any other pregnancy-related expenses.

Drafting Surrogacy Contracts in Mississippi

In the absence of specific surrogacy laws, surrogacy contracts in Mississippi don't adhere to particular legal regulations. However, both parties - the surrogate and the intended parents - must have independent legal representation. The contract should comprehensively cover:

• Rights and Responsibilities: Clearly defined roles and obligations of both parties.

• Financial Aspects: Detailed compensation and covered expenses.

• Risks and Liabilities: Contingency plans for managing potential issues.

• Sensitive Issues: Agreements on matters like selective reduction and pregnancy termination.

• Communication: Guidelines for interaction during the surrogacy process.

Determining Parentage

Mississippi courts generally grant pre-birth orders, although the availability and specifics can vary. The state shows a preference for heterosexual couples in granting these orders. Same-sex couples and LGBT+ intended parents may face additional legal steps, depending on the court. In cases where pre-birth orders are not obtainable, post-birth adoption might be necessary.

Same-Sex Surrogacy

Same-sex surrogacy is considered legal in Mississippi. However, same-sex couples might encounter more challenges in establishing parental rights, depending on the judge and jurisdiction. It is essential for same-sex intended parents to consult with experienced legal professionals to navigate these potential challenges effectively.

Enforceability of Surrogacy Contracts

Due to the lack of specific legislation, it's unclear how Mississippi courts view surrogacy contracts. Nonetheless, they are presumed to be enforceable, akin to any legal contract. Professional legal advice is recommended in these matters to ensure the contract is robust and legally binding.

International Surrogacy Arrangements

International intended parents are subject to the same process as domestic ones in Mississippi. Consultation with an immigration lawyer is advisable for these parents to ensure compliance with all necessary legal steps for bringing their child to their home country.

Post-Birth Adoption Necessities

Post-birth adoption may be required in cases where neither intended parent is genetically related to the child or in traditional surrogacies. However, most intended parents in Mississippi can obtain a pre-birth order, thus often avoiding the need for adoption.

Adoption Options in Mississippi

Mississippi courts do grant second-parent or stepparent adoptions to heterosexual couples, with marriage being a prerequisite. For same-sex couples, the possibility of these adoptions is determined on a case-by-case basis, making it crucial to work with knowledgeable legal counsel to explore available options.

Protecting Parental Rights in Non-Biological Scenarios

In instances where neither intended parent is biologically related to the child, and they cannot secure a pre- or post-birth order, marriage followed by stepparent adoption may be necessary to safeguard parental rights. This process ensures that all legal parentage issues are resolved satisfactorily.

Situations Involving Donor Eggs, Sperm, or Embryos

Mississippi does not have specific statutes or case law addressing the rights of donors in surrogacy cases. Intended parents using a donor egg, sperm, or embryo generally face no additional legal hurdles. However, in some instances, a judge may not allow the granting of a pre- or post-birth order, necessitating adoption to establish parental rights.

Summary

While gestational and traditional surrogacy are both legally practiced in Mississippi, the specifics of each surrogacy agreement and the process of establishing legal parentage can vary significantly based on individual circumstances and judicial interpretation. It is imperative for anyone considering surrogacy in Mississippi to seek the guidance of an attorney experienced in this field to ensure a legally secure and smooth surrogacy journey.