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Overview of the Surrogacy Process

There are two types of surrogacy — traditional surrogacy and gestational surrogacy. In traditional surrogacy, a surrogate mother is artificially inseminated, either by the intended father or an anonymous donor, and carries the baby to term. The child is thereby genetically related to both the surrogate mother, who provides the egg, and the intended father or anonymous donor.

In gestational surrogacy, an egg is removed from the intended mother or an anonymous donor and fertilized with the sperm of the intended father or anonymous donor. The fertilized egg, or embryo, is then transferred to a surrogate who carries the baby to term. The child is thereby genetically related to the woman who donated the egg and the intended father or sperm donor, but not the surrogate. Some lesbian couples find gestational surrogacy attractive because it permits one woman to contribute her egg and the other to carry the child.

Traditional surrogacy is more controversial than gestational surrogacy, in large part because the biological relationship between the surrogate and the child often complicates the facts of the case if parental rights or the validity of the surrogacy agreement are challenged. As a result, most states prohibit traditional surrogacy agreements. Additionally, many states that permit surrogacy agreements prohibit compensation beyond the payment of medical and legal expenses incurred as a result of the surrogacy agreement.

Finding a Surrogate

Sometimes a family member or friend offers to be a surrogate. This can greatly reduce the cost of surrogacy. However, because not everyone knows a woman in a position to volunteer to be a surrogate, most people find a surrogate through other means.

There are many full-service agencies/firms that will match intended parents to surrogates. When choosing an agency, it is imperative to research the agency’s history. Important questions to ask include how fees are determined and how surrogates are screened. If possible, it is often helpful to speak to former clients of the agency.

A selection of sample questions that parents should ask includes:

  • Is the agency responsive to clients? For example, are they prompt in returning calls and e-mails?
  • Is there more than one person who can respond if the parents’ primary contact is away or busy?
  • Does the firm operate as a team?
  • Regarding screening of potential surrogates:
    • Do they meet the surrogate in person?
    • Do they evaluate her home environment or is the screening limited solely to a telephone or office interview?
    • Do they do reference checks?
    • Do they routinely do criminal background checks?
    • What kind of information do they obtain about the surrogate candidate’s prior pregnancies to minimize the risk that this will be a high-risk pregnancy?

Some parents choose to search for a surrogate independently. In this case, it is of the utmost importance that both intended parents and surrogates obtain legal advice before making any agreements or signing any contracts. A clear contract can prevent many potential conflicts during the process. Intended parents should also research a potential surrogate’s history to make sure that there is no cause for concern. Additionally, many states that allow gestational surrogacy prohibit traditional surrogacy and/or compensated surrogacy agreements as a caution against perceived coercion.

Surrogacy Qualifications

Most surrogacy agencies and fertility clinics require surrogates to meet the following general qualifications:

a. Be in good physical and mental health;
b. Have carried and delivered at least one child;
c. Have had pregnancies that were all free of complications and were full-term;
d. Be less than 43 years of age (some clinics will accept older woman in certain circumstances; others have younger age cut-offs for all surrogates);
e. Be in a stable living situation; and
f. Not smoke or abuse alcohol.

Egg and Sperm Donors

In addition to locating a surrogate, most people considering surrogacy will need an egg and/or sperm donor. For an overview of donor insemination and information on choosing a fertility clinic, see: Donor Insemination.

Acknowledgements: This information was provided by Diane S. Hinson, Esq. and Linda C. ReVeal, Esq. of Creative Family Connections LLC.

Disclaimer: This document is provided for information purposes only and is not intended as legal advice. If you need legal advice regarding your specific situation, we strongly recommend that you consult a competent, licensed family law attorney who is familiar with these issues. It is also important that you understand that the information provided here in no way constitute, and should not be relied upon, as legal advice.