Whether you are an intended parent looking to have a baby through surrogacy or a woman ready to make the bold and courageous decision to become a surrogate mother, it can be overwhelming to learn of the many different types of surrogacy options out there. You’ll need to decide if you’ll engage in a compensated or compassionate surrogacy; a traditional or gestational surrogacy; or an agency-led or independent journey.
Your choice hinges on several factors including local laws and regulations, your personal circumstances, and the values that are most important to you. It’s crucial to work with and consult surrogacy professionals who have expertise in this arena so you can make the best informed decision for you and your family building goals. While it’s not necessary to work with a surrogacy agency, the expertise can be well worth the additional cost, especially for first-time intended parents. We will discuss the pros and cons of an agency-led versus independent surrogacy journey later on in the article.
No matter what, you will need a team of surrogacy professionals who can help you determine the best route for you to take. Your fertility clinic, medical doctor, mental health counselor, lawyer, and other professionals all work together to help you have a successful journey. Some take a more DIY approach than others, but there are standards that must be met no matter what (for example, medical and legal standards).
Let’s explore the decisions you will need to make regarding the different types of surrogacy available to you, as well as who each option may be best suited for.
Surrogacy: An Overview
In general, surrogacy is described as a method in which a woman agrees to carry a pregnancy for someone else who will be the child’s parent(s) after birth. Surrogacy is used when the intended parents are unable to carry a child on their own, often due to medical issues. Members of the LGBTQ community and single individuals who wish to be parents can also pursue parenthood via surrogacy.
Today, it’s a modern means of family building that relies heavily on the latest reproductive technology, but surrogacy as a means of growing one’s family has been around for a very long time in one form or another. In fact, there is a story of traditional surrogacy recorded in the first book of the Bible! Obviously, the practice looks much different today, as we will discuss.
An entire surrogacy journey can take up to 15-18 months. If intended parents need to seek an egg and/or sperm donor, it can take an additional 3-4 months. Surrogacy is a long process, but it is worth the wait!
So, how exactly does surrogacy work? Let’s break down the general process as it usually unfolds:
Phase 1: Preparation.
During the preparation stage, intended parents either consult with a surrogacy agency that will walk them through the process or they begin their independent journey. Research, interviewing of surrogacy professionals, and beginning the search for the right match surrogate is well under way.
Phase 2: Legal and Medical Screening.
During this stage, intended parents are busy selecting and screening their gestational carrier, ironing out all the legal and medical details, and making any necessary financial arrangements. They also work with an attorney to draft a Gestational Surrogacy Agreement (GSA) that establishes the relationship with the carrier, including details about the nature and expectations of the relationship, and of course outlining the details of compensation for the surrogate. If you are pursuing a traditional surrogacy, there will need to be similar legal contracts put into place.
Phase 3: Embryo Transfer and Pregnancy.
After everyone receives medical and legal clearance to proceed, it’s time to have a baby! In the case of gestational surrogacy, which is by far the most common, the clinic will prepare the carrier’s cycle schedule. She will take medications to prepare her uterus for transfer. If the transfer is successful, then there are about nine months to wait for the baby to arrive! During this time, the intended parents and the surrogate maintain close communication, per the GSA, and the surrogate will receive prenatal care, first with the fertility clinic and then with her own OB/GYN.
It’s a beautiful yet complex process that requires a lot of forethought and planning, but the outcome is well worth it!
Now that we’ve covered the meaning and general process of surrogacy, let’s talk about the various types of surrogacy out there.
Major Types Of Surrogacy
When considering surrogacy, there are a few key decisions that have to be made regarding the type of arrangement you’ll pursue. Namely, you need to decide if you’ll have a traditional or gestational surrogate, a compensated or compassionate arrangement, and if you’ll work with an agency or pursue independent surrogacy.
There is no single “right” way to proceed. We encourage all of our intended parents to take the time to reflect and consult with trusted professionals before committing to their decision. Surrogacy is a wonderful way to become a parent, but it requires much forethought and planning.
The most important initial decision you must make about surrogacy is if you’ll be working with a gestational or a traditional surrogate. This decision carries a lot of weight in determining the direction your journey will take as well as which laws will apply.
This decision all comes down to genetics: a traditional surrogate agrees to carry a baby that is created using her own eggs; therefore, she is the biological mother. Gestational surrogates, on the other hand, become pregnant via embryo transfer and have no genetic link to the child.
Let’s look at each option in more detail.
Working with a gestational carrier, or gestational surrogate, is the most common type of surrogacy arrangement. This is when the surrogate is not genetically related to the child she carries. Modern technology allows the gestational surrogate to become pregnant with and carry a fetus that’s genetically unrelated to her. This happens by transferring embryos to her uterus formed via in vitro fertilization (“IVF”) using donor eggs or the eggs of the intended mother. This is considered one of the “safest” types of surrogacy from a legal standpoint because the surrogate is not genetically related to the baby.
Who Is It For?
There are many types of intended parents who choose gestational surrogacy. In general, gestational surrogacy is a viable option for a person who has a medical or biological reason they cannot achieve pregnancy in a “traditional” manner.
People who choose gestational surrogacy fall into a few different categories.
- Presence of a medical condition that makes pregnancy impossible or life-threatening
- Lack of a uterus (gay couples, single men, women who have undergone hysterectomies)
- Older parents for whom pregnancy is impossible or too risky
- HIV+ people
- Personal choice — some women may choose what’s known as “social surrogacy” to avoid disruption to their career (politicians, professional athletes, models, etc)
Anecdotally, we at Family Inceptions have helped a wide variety of people become parents via surrogacy. Our founder Eloise Drane is a three-time surrogate herself, having carried for both a same-sex couple and a cancer survivor.
Fertility and the choice to use assisted reproductive technology to grow a family are both very personal topics. We believe anyone who wants to become a parent should be able to, which is why we’re committed to serving our community of intended parents regardless of their faith, background, sexual orientation, ethnicity, or lifestyle. Learn more about our mission here.
It’s worth emphasizing, however, that gestational surrogacy is by far the most commonly accepted modern form of surrogacy. While traditional surrogacy is sometimes an option, as discussed in the next section, it is not typical nor is it commonly endorsed by fertility professionals. Gestational surrogacy, on the other hand, is widely accepted among professionals and becoming more common each year, with an annual average of 750 births in the US resulting from a gestational surrogacy arrangement.
A Traditional Surrogate (“Genetic Surrogate”) becomes pregnant and carries a fetus genetically related to her. This can be achieved in a couple of different ways:
- Via intrauterine insemination (IUI) using sperm from the intended father or a donor
- Via embryo transfer using embryos formed via IVF using the surrogate’s eggs and sperm from the intended father or a donor
Until the 1980s, the only way to have a child via surrogacy was through “traditional surrogacy. The technology simply did not exist to allow gestational surrogacy as a viable option. There were some early sensational cases about traditional surrogacy gone wrong (see the Baby M case) that soured public opinion in the media. Despite some commonly-held misconceptions, there is no sexual intercourse involved between a traditional surrogate and the intended father.
It’s important to recognize that a traditional surrogate is the biological mother of the baby. However, she intends to relinquish her parental rights to the intended parent(s) upon birth. She never intends to become pregnant to have her own child. In some rare cases, the traditional surrogate may change her mind and assert her parental rights as the biological mother. This is a condition that is unique to traditional surrogacy and that can create difficult and complex legal issues.
For this reason, traditional surrogacy is less common today, and many surrogacy professionals will not participate in the practice. The many complex legal, emotional, and interpersonal complications are often too risky given that the surrogate is biologically related to the child. For that reason, Family Inceptions and many other agencies like ours will only work with those pursuing gestational surrogacy arrangements.
Who Is It For?
As previously stated, traditional surrogacy is less common than gestational surrogacy. However, it can be a viable option for intended parents in certain situations.
There are typically two main reasons why someone may choose to pursue traditional surrogacy:
- A desire for a genetic link that would have been impossible with donor eggs
- A need to reduce the overall cost of the surrogacy journey
Many intended parents feel very strongly about having a genetic link to their child. For same-sex male couples, one way this can be achieved is if one partner provides the sperm and the other partner’s female relative agrees to be their traditional surrogate. This is possible as long as all parties are okay with the female relative being the biological mother and presumably having an ongoing relationship once the child is born.
Traditional surrogacy is often considered as a way to reduce the overall cost of having a child via surrogacy. Because the surrogate’s own eggs are used, there is no cost in finding an egg donor. If she is able to become pregnant via intrauterine insemination, intended parents can also avoid the cost of egg retrieval, embryo creation, and embryo transfer. Traditional surrogates are also more likely to be someone known to the intended parents, like a female relative or close friend; therefore, they are less likely to require or request compensation above simple reimbursement of expenses.
In any case, traditional surrogacy should be approached cautiously and with the guidance of legal and mental health professionals.
Other Types Of Surrogacy
There are a few other types of surrogacy to consider. The main decisions intended parents will need to make involve the type and amount of compensation and whether you will work with an agency or pursue an independent journey.
The general process is often the same no matter the type of agreement you enter into. However, with commercial surrogacy, intended parents are usually matched with their surrogate through a professional agency. A predetermined payment is included to compensate the carrier for their time and efforts throughout the pregnancy.
Altruistic surrogacy differs from commercial in that the surrogate is often someone well-known to the intended parents. They choose to be the gestational carrier solely as an act of generosity with little to no compensation. In these situations, the intended parents are only responsible for covering the cost of any medical and pregnancy-related expenses.
Having the opportunity to save money is a common reason intended parents choose to go this route. However, finances are not the only reason intended parents might choose this type of agreement. In some cases, altruistic surrogacy could be their only option. In some states, the only legal option for surrogacy is through altruistic or compassionate surrogacy. In fact, several countries have bans on compensated surrogacy, such as Canada and the UK.
Commercial, sometimes referred to as compensated surrogacy, typically consists of the intended parents being matched with their surrogate through a professional agency. A specific base payment along with a monthly allowance is typically included to compensate the gestational carrier for their time and efforts throughout the pregnancy. In addition, all of the medical and pregnancy related expenses are also paid by the intended parents, including health and life insurance for the duration of the contract.
Commercial surrogacy, when done properly, is a mutually beneficial arrangement for all involved parties. The types of women who serve as gestational surrogates do so first and foremost out of a sense of service and compassion. The secondary benefit is that they receive payment for their commitment to the process. Many surrogates are able to pay off debt, afford the down payment on their dream house, or help their family advance other financial goals as a result.
When referring to an altruistic surrogacy, also known as compassionate surrogacy, the woman carrying the pregnancy chooses not to receive a base compensation. This person is often a friend or family member that is already known to the intended parents, although not always. Some states and countries do not permit commercial surrogacy, meaning that altruistic is their only option.
The altruistic surrogate genuinely wants to help them become parents while eliminating some of their financial burden.
While she doesn’t receive the base compensation or monthly allowance of a compensated surrogate, her medical expenses and others related to the pregnancy should always be covered. In either case, altruistic or commercial, the arrangement should only move forward after a solid legal agreement has been put into place. This contract must outline all expectations for compensation, among many other details.
The next major choice intended parents must make is if they will employ the services of a surrogacy agency or if they will pursue an independent journey. Independent, or private, surrogacy is when the intended parents and the surrogate choose not to work with an agency during their process. Those that choose this route will still need to work with a fertility clinic and a family law attorney. Because an agency often plays a big role in finding the right match, independent surrogacy journeys usually occur when the intended parents already know who their surrogate is going to be.
Everyone certainly has different needs, and while independent surrogacy might work well for some, it might not be the best fit for others. Agency guidance is especially helpful for those who are going through the process for the first time. An agency offers help and guidance from experienced professionals from screening, matching, counseling, planning, and even case management. The legal and medical side of things can be a bit daunting as well, so it’s nice to have an experienced agency coordinate all of those things for you.
On the other hand, independent surrogacy can be a good fit for those who have completed a previous surrogacy journey, or for those who wish to have a very hands-on approach to the process. In any case, it’s important to do your due diligence if you choose to pursue an independent journey. It can be tempting to cut corners in order to save some money, but trust us: it’s not worth the risk. Don’t believe us? Check out episode 23 of The Fertility Cafe podcast, all about those cases of surrogacy gone wrong that made for sensational news headlines. Be sure to grab the popcorn first (and then run, don’t walk, to your closest, most qualified assisted reproductive law attorney).
If you are interested in learning more about how to pursue an ethical, drama-free independent surrogacy, check out https://surrogacyroadmap.com.
Laws Surrounding Surrogacy
The legal aspect of surrogacy can get quite complicated, so it’s important to reach out to a professional for help. The laws on surrogacy vary by state and are always changing. In the United States, there is no federal regulation or law governing surrogacy agreements. As such, it comes down to state and local governments to decide if surrogacy is permissible or not.
States can be divided into three basic categories: surrogacy-friendly, meaning there are explicit laws in place that govern gestational and/or traditional surrogacy agreements; use caution, meaning that laws are murky and can vary from judge to judge, or there are extra hurdles for unmarried or same-sex couples; and finally, surrogacy restricted states, those where laws explicitly limit or prohibit surrogacy in some way.
You can see where your state lies by visiting our US Surrogacy Map, but keep in mind that legal issues with surrogacy are constantly changing.
The majority of states fall into the “caution” category because the law does not take a stance one way or another. Many rely on nuances of past court cases or other somewhat related laws, which is why it’s extremely important to seek the help of a professional attorney.
To illustrate the potential complications, some states that ban commercial surrogacy might allow altruistic surrogacy. Others may add increased levels of difficulty depending on whose genetic material is used to create an embryo.
It’s important to make sure that the state of both the intended parents and the carrier are surrogacy-friendly states. Unfortunately, it gets more complex than that. Let’s say both parties come from states that allow surrogacy. Well, it is still possible that those two states have laws that do not work well together.
For example, if you are a same-sex couple living in surrogacy-friendly California, but your surrogate lives in surrogacy-friendly Tennessee, you might run into complications when it comes to establishing parenthood. Why? Well, because Tennessee only allows surrogates to be carriers for straight couples. When it comes time to establish parental rights, the laws of the state where the baby is born (usually the surrogate’s home state) apply.
This level of potential complication is why it’s always a good idea to seek guidance from a lawyer who specializes in reproductive law.
Whatever you do, do not try to DIY your surrogacy agreement. Some might think they don’t need to worry about this step as much when they personally know their surrogate. Wrong! It is very important to seek help from an experienced lawyer no matter the type of surrogacy agreement you’ve chosen. We have heard too many heartbreaking stories of surrogacy journeys gone wrong because the proper legal parameters were not put into place.
With Google right at our fingertips, it can be tempting to put together your own documents. Again, this is not a good idea. If you’d like to browse through surrogacy contracts online, go right ahead. It’s perfectly acceptable to look over checklists and templates as you’re researching so you can better prepare yourself for a meeting, but it’s best to leave the actual legal work to the professionals. We strongly recommend finding an experienced attorney who specializes in assisted reproductive technology.
An attorney will help you create a gestational surrogacy agreement (GSA) which will be THE guiding document for your entire surrogacy journey. Chances are you will use it as your roadmap over the course of 12-18 months. It’s legally binding, extremely detailed, and provides protection for all involved parties.
There is A LOT of important information covered in a GSA. Read on to see a list of what is generally included.
- Acknowledgment of informed consent and awareness of risks.
- Surrogate is aware of the potential for risk and that she agrees to carry a child without expectation of parental rights.
- Surrogate agrees to undergo physical and psychological examinations.
- Everyone agrees on the type of reproductive technology procedures that will be used..
- Agreement is made about how many embryos will be transferred to the surrogate’s uterus. (ASRM strongly recommends transferring only one embryo to reduce the risk of multiples.)
- A detailed compensation layout.
- Agreement of termination and reduction.
- Agreement of the general number of embryo transfer attempts to be made..
- Outline of all medical actions surrogate agrees to.
- Surrogate agrees to follow medical advice, avoid intercourse when medically necessary for success of the journey.
- The surrogate agrees to avoid smoking, drinking, and using illicit drugs while pregnant.
- She agrees to get regular prenatal care and follow all medical advice.
- She and the IPs come to an agreement about who will be present during these prenatal doctor visits. Are the IPs welcome to attend or not?
- Additional behavioral restrictions/avoiding certain activities?
- GSA will likely have some language about avoiding risky activities and following generally accepted advice like not spending time in hot tubs or riding on roller coasters.
- Agreement to limit risky travel to states like Michigan where surrogacy contracts are illegal or out of the country.
- Communication expectations.
- When will payments be made and for what purpose?
- Compensation schedule?
- General plan for delivery day
- What happens if the surrogate goes into labor early?
- General birth plan
- Most Important – The surrogate and her partner agree that they have no legal claim on the child and will not pursue custody. She agrees that her parental rights will be terminated, either through a pre-birth court order or immediately following the birth of the child. All parties agree that the IPs are the legal parents and custody will be granted immediately.
All incredibly important details, right? This is why it is so important to work with an experienced attorney even if the surrogate is a friend or family member. The attorney will guide you through your surrogacy journey from start to finish to be sure you are fully protected. Hopefully no issues would come up along the way, but it can happen and you will be so thankful to have your lawyer’s help.
Which Is Best Suited For You?
The exact type and trajectory of your surrogacy journey is dependent on many factors that are personal to your unique circumstances. We want all of our intended parents and potential surrogates to be informed of all possibilities in order to make the most empowered decision for them. If you need assistance sorting through all of your options, please don’t hesitate to reach out to our team. We love talking about all things family building!
Want to know more about surrogacy? Reach out today!