surrogate motherhood in Iowa

There are no laws in Iowa that specifically provide guidelines or procedures for a surrogacy arrangement. Iowa Code 70.11, which makes it unlawful to sell or purchase another person, provides for an exception in the surrogate arrangement. This section would indicate that the state of Iowa has accepted the surrogate arrangement and arguably would indicate that a surrogate contract is not against public policy and void as was found in the Mary Beth Whitehead case in New Jersey.

Another issue in the Baby Jessica case was that the biological mother claimed that she did not terminate her rights because the appropriate waiting period for the signing of termination papers had not elapsed. This teaches that in any surrogacy arrangement, it is imperative that the requirements of the adoption law be strictly followed.

In Iowa a husband is presumed to be the father of any child born in wedlock. Thus, if the surrogate is married, her husband's parental rights need to be terminated in the adoption proceeding as well as the surrogate's parental rights.

This does not answer the question of what will happen if the surrogate backs out of the agreement and attempts to keep the child.

Again, in Iowa, a child is presumed to be legitimate if the male and female are married at the time of delivery. The gist of this statute is that the husband is presumed to be the father of any child born in wedlock, unless it can be proved otherwise. Thus, if the surrogate is married, the law would presume that her husband is the father of the child. However, the biological father could rebut this presumption and establish paternity. With today's technology, this is easily done with DNA testing. Thus, the father could petition a court for custody of the child. The Court will look at the child's best interests in determining which parent should have custody. It is unknown whether or not the Courts would enforce the surrogate contract and to what extent they would enforce the agreement.

There remains numerous unanswered questions in the surrogate arrangement.

What if the surrogate is not the biological mother of the child, but gives birth to the child? The Iowa law does not answer the question of "maternity." One can only assume that the Courts would make a logical ruling and hold that the infertile couple are the legal and biological parents of the child.

What if the surrogate is the biological mother of the child? The Iowa law does not address this issue. Based on Iowa Code 70.11 an argument can be made that the legislature anticipated surrogate arrangements by providing they were not illegal. Thus, the surrogate is bound by the contractual arrangement and such a contractual arrangement is not contrary to public policy.

In summary, the law in Iowa has not addressed the surrogate arrangement. (As a side note, there have never been any cases or statutes which address the parental status when artificial donor insemination is used.) The couple should use the adoption proceedings to formalize and legalize the parent-child relationship.