By: Emilee Gehling and Kecia Van’t Hof
December 2019
Surrogacy is often referred to in two different ways: traditional surrogacy and gestational surrogacy. Traditional surrogacy happens when a surrogate is artificially inseminated by either the intended father, meaning the man who will become the father after the birth of the child, or by a donor. With traditional surrogacy, the child will be biologically related to the surrogate and the intended father or donor. Gestational surrogacy is when the intended mother or an egg donor produces an egg and that egg is fertilized by the intended father’s, or sperm donor’s, sperm and then carried to full term by the gestational surrogate. In gestational surrogacy, the child is biologically related to the intended parents, or donor(s), and not to the surrogate mother.
To start the process of surrogacy, the intended parent(s) must first pick a surrogate. The intended parent(s) can find a surrogate in numerous ways: friends, family, agencies/firms, or searching for a surrogate independently. Friends and family are good options for surrogates because they typically reduce the costs of the process and can make it less formal. Agencies/firms pair surrogates with intended parents and they screen the surrogate for medical and social candidacy to present to intended parents. Agencies/firms are a great option for intended parents if they do not have the time to independently put in the work to find a surrogate due to the agency/firm doing all the background and health checks for the intended parents. Further, agencies/firms require several qualifications that a surrogate must meet in order to be granted the ability to be recommended by the agency/firm to the intended parent(s). In addition, it may be difficult for intended parents to find a surrogate on their own.
The next step in the surrogacy process is to ensure that you meet all the legal requirements necessary. Once a surrogate is decided upon by the intended parent(s) and determined to be eligible and cleared by a reputable fertility clinic, a legal document should be drafted in order to establish the relationship and the outcomes that are intended by both parties. Both parties should have separate independent legal representation in order to assure that decisions are being made in everyone’s best interests. After the legal document has been approved and signed, then the embryo transfer process can begin.
The embryo transfer happens through several medical procedures. First, the intended mother or egg donor will take medication that will help her develop eggs. After eggs are developed, a physician will gather the eggs from the intended mother or egg donor’s, uterus. The egg(s) will then be fertilized in a laboratory by a physician or lab technician with the intended father’s or sperm donor’s sperm. This creates the embryo. After the embryo is created and survives over several days or a week in the lab, it will then be transferred into the surrogate, where she will carry it to full term. Embryos may be tested for such thing as genetic conditions.
After the egg has successfully been fertilized and transferred, the intended parents’ legal counsel must take the steps necessary to get the intended parents to become the legal parents of the child. This will allow them to make medical decisions and will further allow for their name to be provided on the birth certificate at the time of birth. When the child is born the child will be released to the intended parents.
The legal requirements for establishment of parentage in a surrogacy case vary by state. Obtain an experienced an attorney to help through the process to ensure all laws are followed. The American Academy of Adoption and Assisted Reproduction Attorneys has contact information of fellows of the Academy.