Surrogacy: Friendly States, Necessary Steps, and Your Rights?

Gestational surrogacy, known as “surrogacy”, is growing in popularity as it provides family-building options for individuals and couples who are biologically unable to have children. The term “surrogacy” or “surrogate” is commonly recognized, but many don’t know what it entails.

Key takeaways:
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    Surrogacy opens family-building options for those who need or wish to take a different route.
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    A surrogate's role is to nurture the child in the womb and then release the child to its biological parents.
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    Surrogacy laws are regulated by the state, not the federal government.
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    There are surrogacy agencies that can help with every step of the journey.

What is surrogacy?

At a minimum, surrogacy involves two individuals and a child. A “gestational carrier” is a woman who agrees to bear the developing child with the assistance of reproductive technology. The gestational carrier is normally not genetically related to the child. Her role is to nurture the child in the womb and then release the child to be nurtured by the biological parents.

Though surrogacy opens family-building options, its legal, psychosocial, and medical complexities can deter those desperately wanting children.

Which states allow surrogacy?

Surrogacy is regulated by the state, not the federal government. Pursuing this option begins with determining surrogacy laws within your state.

What is a surrogacy-friendly state?

Several states are considered “surrogacy-friendly”. These states legally permit or recognize surrogacy. Many of these states have a long history of surrogate-friendly court rulings. Surrogacy-friendly states grant pre-birth orders regardless of marital status, sexual orientation, and genetic relationship. They also allow surrogacy agreements that are both compensated and uncompensated.

Surrogacy-friendly states: California; Connecticut; Delaware; District of Columbia; Maine; New Hampshire; Nevada; Oregon; Rhode Island; Washington.

What is a non-surrogacy-friendly state?

Non-surrogacy-friendly states are few, but those who take that stance do not enforce contractual agreements of surrogacy. They are characterized by not granting pre-birth orders and prohibiting compensation for surrogacy services. If a surrogacy arrangement goes against the state's laws, the individuals involved are at risk of fines and criminal charges.

Non-surrogacy-friendly states: Michigan; New York.

Some states land in the middle

Not all states are at one end of the spectrum or the other. Though many states would not be considered "surrogacy-friendly", they allow for surrogacy within specific parameters. States that are more friendly toward surrogacy may have guidelines and laws concerning pre-birth orders, compensation stipulations, and genetic guidelines. The laws within these states are varying, inconsistent, and uncertain.

Of the states that land in the middle where surrogacy is legal, some are less friendly towards the process. In these states, additional legal hoops and hurdles may have to be jumped to be approved for surrogacy. Even if surrogacy is approved, individuals may find that agreed-upon contracts and legal documents are unenforceable with laws being unclear and risky.

How does surrogacy work?

After researching state regulations, considering the financial expense, and reviewing all family planning options, surrogacy works in five stages:

  • Donation of egg and sperm.
  • In vitro fertilization of an egg by sperm.
  • Finding and qualifying the gestational surrogate.
  • Transfer of embryo and pregnancy begins.
  • Finalize parental rights in legal court.

What are the steps of surrogacy?

Step 1: Donation of egg and sperm

The donation of sperm and egg is made at an in Vitro Fertilization (IVF) clinic. Donation of sperm is painless and typically only takes an afternoon. Donation of the egg requires hormone treatment two weeks before retrieval of the egg.

Step 2: In vitro fertilization of the egg by sperm

The eggs are removed from the ovary via ultrasound guidance and fertilized in the lab. It is allowed to grow in an incubator for approximately five days. At that point, the highest quality, fertilized eggs are frozen or transferred to the surrogate. It is important to remember that even in the best clinics, the success rate is about 75%. Therefore, plan to use a few high-quality eggs.

Stage 3: Finding a qualified gestational surrogate

One of the most challenging stages of the process is finding a surrogate. Many parents are searching for a limited supply of qualified surrogates. Surrogate agencies work as a liaison between the intended parents and surrogate mothers.

If using an agency, they have strict guidelines and requirements for surrogate qualifications. The agency provides medical and legal counsel for the involved parties while negotiating the contract. However, going this route will cost anywhere from $20,000-$30,000.

The other option is to try to find a private surrogate. This option comes with much more financial and legal risk.

Stage 4: Transfer of embryo and pregnancy begins

As previously mentioned, surrogate mothers will undergo hormone injections, stimulating the uterine wall's thickening. This prepares the uterus for the implantation of a fertilized egg. A pregnancy test is done before the transfer, and several viable embryos are placed in the uterus with a small catheter and syringe.

In the US, it is common practice for surrogate mothers to manage their own medical and prenatal care. However, it is recommended that the intended parents be respectfully involved in the process. Clear communication of expectations is helpful for a positive experience for both the parents and the surrogate mother. For instance, being mindful of common milestones and supporting the expectant mother helps facilitate positive emotions for everyone.

Stage 5: Birth and finalization of parental rights

The birthing plan is a predetermined script that has been agreed on before delivery. This "delivery plan" dictates specifications concerning the delivery of the new baby and much of the aftercare. Once the baby is born, the paperwork begins. The birth certificate is prepared before leaving the hospital or birthing center with the intended parent's name and the preferred name of the infant.

Pros and cons of surrogacy

The pros of surrogacy are apparent. When a family feels desperate to have a baby, it can feel devastating to hear that conception is biologically unavailable. Surrogacy allows parents to have a baby with their genetic makeup which is exhilarating for those whose options are limited.

However, surrogacy comes with risks both for the baby, the surrogate mother, and the intended parents. Multiple births, premature labor, ectopic pregnancy, miscarriage, legal complications, and financial strain can occur and thus must be factored into the decision-making process.

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