“Surrogacy is a general term for an arrangement between two parties: The surrogate agrees to carry a pregnancy for the intended parents or parent. There are two types of surrogacy: gestational surrogacy and traditional surrogacy,” says Barry Witt, M.D., medical director at WINFertility.
On the other hand, “traditional surrogacy is where the surrogate’s own eggs are used, making her the biological mother of the child. This can be accomplished by inseminating the carrier with sperm from the father (or sperm donor) who then conceives, and the resulting child belongs to the intended parent,” says Dr. Witt.
But traditional surrogacy is far from the norm in 2021, according to Dr. Witt. “[It’s] now performed very rarely because it’s more complicated, both legally and emotionally,” he explains. “Since the genetic mother and the birth mother are the same, the legal status of the child is more difficult to determine than in a gestational surrogacy situation where the egg is from the intended parent.” (Related: What Ob-Gyns Wish Women Knew About Their Fertility)
So odds are that when you hear about surrogacy (be it in the case of Kim Kardashian or your neighbor) it’s likely gestational surrogacy.
Why Pursue Surrogacy?
People pursue surrogacy due to lack of a uterus (either in a biological woman who had a hysterectomy or in someone who was assigned male at birth) or a history of uterine surgeries (e.g. fibroid surgery or multiple dilation and curettage procedures, which are often used to clear the uterus after a miscarriage or abortion), explains Sheeva Talebian, M.D., a reproductive endocrinologist at CCRM Fertility in New York City. Other reasons for surrogacy? When someone has previously experienced complicated or high-risk pregnancies, multiple unexplained miscarriages, or failed IVF cycles; and, of course, if a same-sex couple or single person who can’t carry is pursuing parenthood.
How Do You Find a Surrogate?
Stories of a friend or family member volunteering to carry a child for a loved one? That’s not just the stuff of movies or viral headlines. Some surrogacy arrangements are, in fact, handled independently, according to Janene Oleaga, Esq., an assisted reproductive technology attorney. More commonly, though, families use a surrogacy agency to find a carrier.
While the process can vary from one agency to another, at Circle Surrogacy, for example, “matching and legal teams work together to determine the best possible matching options based on a variety of factors,” says Jen Rachman, L.C.S.W., outreach associate at Circle Surrogacy. These include the state in which the surrogate lives, whether they have insurance, and the matching preferences from both intended parents and the surrogate, she explains. “Once a match is found, redacted profiles of the intended parents and surrogates (with no identifying information) will be exchanged. If both parties express interest, Circle arranges a match call (typically a video call) together for the surrogate and intended parents to get to know each other.”
And if both parties agree to pursue a match, the process doesn’t end there. “An IVF physician medically screens surrogates after a match is made,” says Rachman. “If for any reason the surrogate does not pass the medical screening (which is rare), Circle Surrogacy presents a new match free of charge.” (Related: Should You Get Your Fertility Tested Before Even Thinking About Having Kids?)
In general, “the potential surrogate will meet with a fertility specialist to do specific exams to assess the interior of the uterus (usually an in-office saline sonogram), a trial transfer (mock embryo transfer to make sure the catheter can be inserted smoothly), and a transvaginal ultrasound to assess the structure of the uterus and ovaries,” says Dr. Talebian. “The surrogate will need an updated Pap smear and if she is over 35, [a] breast mammogram. She will also meet with the prospective obstetrician who will manage her pregnancy.” While the medical screening is underway, a legal contract is drafted for both parties to sign.
What Do the Laws Around Surrogacy Look Like?
Well, that depends on where you live.
“[There’s incredible variation] from state to state,” says Oleaga. “For example, in Louisiana, surrogacy for compensation [meaning you pay a surrogate] is not permitted at all. In New York, compensated gestational surrogacy wasn’t legal until this past February. If you follow the rules it’s perfectly above board and completely legal, but that’s how greatly the states vary.”
So yes, the legal particulars of surrogacy are incredibly complex — how do intended parents navigate this? Oleaga suggests meeting with an agency and possibly seeking out a free legal consultation from someone who practices family law to learn more. Some services, such as Family Inceptions, also have an option on their website to contact the organization’s legal services team with any questions to help potential future parents get started. The thing to remember, though, is that both the intended parents and the surrogate need legal representation in order to undergo the process of implanting the embryo in the surrogate’s uterus. This prevents heartbreaking scenarios from playing out down the line.
“For a long time, everyone was afraid that a surrogate [was] going to change her mind. I think a lot of states have these laws in place for a reason,” says Oleaga. “[As a surrogate], you sign a pre-birth order saying ‘I am not an intended parent,’ which should give the [intended] parents some sense of security knowing that their legal rights as parents are recognized while the baby is still in utero.” But, again, it depends on where you live. Several states do not allow pre-birth orders while others allow post-birth orders (which are essentially the same as their “pre” counterpart but only attainable after delivery). And in some states, the way in which you can secure your parental rights (pre-birth order, post-birth order, or post-birth adoption) depends on your marital status and whether part of a hetero- or homosexual couple, among other factors, according to the LPG.
How Does the Surrogate Get Pregnant?
Essentially, gestational surrogacy uses in vitro fertilization; the eggs are surgically harvested (extracted) from a donor or an intended parent and fertilized in an IVF laboratory. Before the embryos can be inserted into the gestational carrier’s uterus, it must be “medically prepared to receiv