Surrogacy is an arrangement whereby a woman agrees to become pregnant and deliver a child for another individual or couple. She may be the child’s genetic mother (traditional surrogate), or she may gestate a child (gestational carrier) from the intended mother’s eggs and the intended father’s sperm, donated gametes, or a combination of the intended parents’ and donor gametes, with the intent that the intended parents will become the legal parents of the child.
In atraditional surrogacy, the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others such as the biological father and possibly his spouse or partner. Therefore, after the birth of the child, the traditional surrogate must agree to relinquish her parental rights through an adoption proceeding in order for the intended parents to establish their legal parentage of the child. Traditional surrogacy is legally high-risk and is prohibited in some jurisdictions.
In gestational surrogacy, a woman is implanted with an embryo that is not genetically her own, and she gives birth to a child whom she will not raise. After the birth, the gestational carrier places the child with the intended parents who will become the legal parents. While this process is much less risky than traditional surrogacy, the legal agreement between the gestational carrier and the intended parents must be carefully drafted and reviewed by experienced ART attorneys to ensure that the rights of all the parties, including the child, are protected. It is important for all the parties to be represented by experienced ART attorneys in the drafting and reviewing of the parentage agreement and in securing the legal rights and responsibilities of the intended parents through court orders, where required. The laws relating to surrogacy and the parentage of children vary significantly from state to state. In some states, compensated surrogacy is tightly controlled or even illegal, and in others, it is not regulated at all. It is important to retain an attorney experienced in ART, and in surrogacy specifically, in your jurisdiction prior to entering into any surrogacy arrangements.