There’s still some controversy about using a surrogate mother to have a baby. The legal process is also tricky because it varies from state to state. Even so, whether it’s because of fertility problems or other reasons, surrogacy is an option for you and your partner. Find out how it works and see if it’s right for you.
What Is a Surrogate Mother?
There are two kinds:
Traditional surrogate. It’s a woman who gets artificially inseminated with the father’s sperm. They then carry the baby and deliver it for you and your partner to raise.
A traditional surrogate is the baby’s biological mother. That’s because it was their egg that was fertilized by the father’s sperm. Donor sperm can also be used.
Gestational surrogates. A technique called “in vitro fertilization” (IVF) now makes it possible to gather eggs from the mother (or an egg donor), fertilize them with sperm from the father (or a sperm donor), and place the embryo into the uterus of a gestational surrogate.
The surrogate then carries the baby until birth. They don’t have any genetic ties to the child because it wasn’t their egg that was used.
A gestational surrogate is called the “birth mother.” The biological mother, though, is still the woman whose egg was fertilized.
In the U.S., gestational surrogacy is less complex legally. That’s because both intended parents have genetic ties to the baby. As a result, gestational surrogacy has become more common than a traditional surrogate. About 750 babies are born each year using gestational surrogacy.
Who Uses Surrogates?
If you’re a woman, you may consider a surrogate for several reasons:
Medical problems with your uterus
You had a hysterectomy that removed your uterus.
Conditions that make pregnancy impossible or risky for you, such as severe heart disease
You may want to think about surrogacy if you tried but couldn’t get pregnant with a variety of assisted-reproduction techniques, such as IVF.
Surrogates have also made parenthood an option for people who might not be able to adopt a child, perhaps because of their age or marital status.
If gay men decide to use a traditional surrogate, one of them uses their sperm to fertilize the surrogate’s egg through artificial insemination. The surrogate then carries the baby and gives birth.
A gay couple might also choose an egg donor, fertilize that donated egg, and then have the embryo implanted in a gestational surrogate to carry until birth.
Finding a Surrogate
There are several ways you can find a surrogate mother:
Friends or family. Sometimes you can ask a friend or relative to be a surrogate for you. It’s somewhat controversial. But because of the high cost of surrogacy and the complex legal issues it raises about parental rights, a tried-and-tested family relationship can be simpler to manage.
The American Society for Reproductive Medicine accepts certain family ties as acceptable for surrogates. It generally discourages surrogacy, though, if the child would carry the same genes as a child born of incest between close relatives.
A surrogacy agency. Most people use one to arrange a gestational surrogate. There are about 100 agencies now operating in the U.S. They act as go-betweens.
An agency helps you find a surrogate and make arrangements. It also collects any fees that get passed between you and the surrogate, such as paying for their medical expenses.
How to Choose a Surrogate
Right now there aren’t any regulations about who can be a surrogate mother. But experts agree on a few points about how to select one.
You should choose surrogates who:
Are at least 21 years old
Have already given birth to at least one healthy baby so they understand firsthand the medical risks of pregnancy and childbirth and the emotional issues of bonding with a newborn
Have passed a psychological screening by a mental health professional to uncover any issues with giving up the baby after birth
Sign a contract about their role and responsibilities in the pregnancy, such as prenatal care and agreeing to give you the baby after birth.
Using a Surrogate
The American Society for Reproductive Medicine says surrogates should get a medical exam to check that they are likely to have a healthy, full-term pregnancy. The organization suggests they get tests that check for infectious diseases such as syphilis, gonorrhea, chlamydia, HIV, cytomegalovirus, and hepatitis B and C.
Surrogates should get tests to make sure they have immunity to measles, rubella (German measles), and chickenpox. Also, you may want to ask that they get a medical procedure to visually “map” the uterus, which can help the doctor check their potential to carry a pregnancy. Surrogate mothers should have their own doctor during pregnancy rather than use yours.
The cost of surrogacy can range from $80,000 to $120,000. A lot of different things go into the price, such as whether the surrogates have their own medical insurance or whether you need to buy a surrogacy-pregnancy policy for them.
Legal Issues With Surrogates
Parental rights aren’t guaranteed after a surrogate pregnancy. The law continues to change as reproductive technology and the very definition of a “parent” changes.
There isn’t a federal law on surrogacy and state laws vary. After a surrogate pregnancy in some states, you may still have to pass adoption proceedings to gain legal custody of the child. In other states, a “declaration of parentage” before birth lets you avoid having to “adopt” the baby.
To protect your rights as parents-to-be — and the rights of the child you’re hoping to have — hire an attorney who specializes in reproductive law in your state. They can write a surrogacy contract that clearly spells out what everyone needs to do.
A contract like that may help if legal issues come up after birth. It can also outline agreements about a variety of possible scenarios with the pregnancy, such as what happens if there are twins or triplets.
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