For anyone considering surrogacy or supporting a friend though their surrogacy journey.
Surrogates are called “gestational carriers.” Parents are referred to as “intended parents,” even if egg and sperm donors are used.
Gestational Surrogacy Versus Traditional Surrogacy
Gestational surrogacy — the most commonly pursued form — uses the eggs and sperm of the intended parents or donor(s). In traditional surrogacy, the surrogate’s eggs are used, making her the biological mother of the child. “Traditional surrogacy is considered “off-grid” and avoided at all costs by reputable agencies and practitioners,” explains Nazca Fontes, founder and CEO of ConveiveAbilities, a surrogacy and egg donor agency serving families nationwide. “It presents complex emotional and legal challenges for all parties involved. The court system does not recognize traditional surrogacy contracts and thus make parentage agreement unenforceable.”
Most professionals work only with gestational carriers and couples pursuing gestational surrogacy.
Commercial Surrogacy Versus Altruistic Surrogacy
In commercial surrogacy, the gestational carrier is compensated for the act of carrying the child. In altruistic surrogacy, financial compensation is waived. Medical and legal expenses are still paid by the intended parents.
Laws Vary State By State
Some states are surrogacy-friendly, while others are not. Within each state, laws can vary for heterosexual couples, unmarried couples, same-sex partners, and intended parents who are not genetically related to the child (when donors are used). Creative Family Connections, a Maryland-based surrogacy agency and law firm, provides a detailed breakdown of surrogacy laws by state on their website. If you are pursuing surrogacy, it’s imperative to work with agencies and lawyers who are well-versed in surrogacy law.
In Some States, Intended Parents Must Adopt Their Child After Birth
In surrogacy-friendly states such as California, pre-birth parentage orders are granted to intended parents, recognizing them as the legal parents from the moment of birth. In other states like Kansas, pre-birth parentage orders are granted ONLY to biological parents. If donor eggs or sperm are used, the intended parent who is not biologically related must adopt the child after birth.
Commercial Surrogacy Is Illegal In Three States
Commercial surrogacy is illegal in Louisiana, Nebraska, and Michigan. While altruistic surrogacy is permitted, contracts are considered void and unenforceable, leaving both the carrier and the intended parents unprotected. Couples often choose to use surrogates living outside the state but even then, intended parents often go unrecognized on birth certificates. In Nebraska, the surrogate is listed as the mother, even if the intended parents’ eggs and sperm were used. The intended (biological) mother must adopt her own child to be named on the birth certificate. In the case of same-sex couples, only one parent is allowed to adopt the child and be named on the birth certificate.
Common Characteristics of Surrogates
ConceiveAbilities recently hired Accelerant Research to survey current and potential surrogates for a better understanding of the women who are drawn to surrogacy. Fontes outlined their findings in a recent op-ed encouraging all states to legalize commercial surrogacy:
More than 60% of current and potential surrogates reported a household income above $75,000.
More than half volunteer regularly.
Nearly half are registered blood and organ donors.
Almost one-quarter of them foster pets.
68% see surrogacy as a way to support the LGBTQ community.
More than three-quarters said they did so because they knew someone personally in need. Two-thirds said they were witness to a relative or close friend’s struggle with infertility.
87% said they find joy in helping others.
74% reported they are motivated by a sense of empowerment as a surrogate.
Is there a financial motivation as well? Definitely. Two-thirds said the income lowers financial stress by paying down student loans and other debt.
“But If they embark on it purely for financial motive, they will be disqualified in the screening process,” assures Fontes.
Qualifications and requirements for surrogates vary between agencies. While screening guidelines are provided by the American Society for Reproductive Medicine and state law, it is important to choose a reputable agency or practitioner whose screening process provides the highest level of protection for both intended parents and surrogates.
Common requirements of surrogates include physical and mental health clearances, age qualifications, and at least one previous full-term, healthy pregnancy. Screening may also include multiple interviews, background checks, and a health history.
Legalizing Commercial Surrogacy Benefits All Parties
Advocating for paid surrogacy is about more than compensation. “It’s about advancing laws that protect all parties,” explains Fontes. “Anybody that has gone through child bearing knows that nobody is going to do that purely for financial motive. So why make it more difficult for intended parents and surrogates with various court systems and a patchwork of laws? New York’s recent Child Parent Security Act, which legalizes compensated gestational surrogacy, includes a surrogacy bill of rights, which ensures that surrogates have gone through the necessary steps of informed consent. It’s a win/win.”
How You Can Support Commercial Surrogacy Legalization
Fontes encourages those living in a state where paid surrogacy is illegal to write their Congressperson and share their stories in public forums. “I find that in smaller towns, government’s a big deal. People still read the newspapers. The more voices in the mix, the better. The more we can showcase examples of people who have pursued surrogacy and the challenges they’ve had to overcome, the more people will begin to understand the process and the need for change.”
This post is in partnership with ConceiveAbilities, a surrogacy agency serving intended parents, egg donors, and surrogates across the country.
Jessica Butler is the co-founder of Raise, stepmother of two, and adoptive mother of one. Prior to Raise, she was a writer on USA’s "In Plain Sight" and TNT’s "The Last Ship." She and her husband, writer/producer Warren Bell, co-created the Nick at Nite series "Instant Mom," based on her life as a stepmother. She lives in Los Angeles with her husband and six-year-old son, Levon.