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  • Surrogacy

    SurrogacyA surrogacy arrangement or contract is when a woman carries a pregnancy for the intended parents (the parent(s) that intend to raise the child). Two types of surrogacy agreements exist: gestational surrogacy and traditional surrogacy.

    In gestational surrogacy, an embryo created through in vitro fertilization (IVF) is transferred into the uterus of the surrogate, who is also referred to as a gestational carrier. The surrogate is not genetically related to the child. Gestational surrogacy is the most common surrogacy arrangement in the US.

    In traditional surrogacy, artificial insemination is used with either the intended father’s sperm or donor sperm. The surrogate is genetically related to the child.

    The laws in each state in the US and in every country vary greatly on what is legal in surrogacy arrangements. You must be very careful and consult with an attorney that specializes in reproductive law and surrogacy if you are considering surrogacy.

    + Who Should Consider Surrogacy?

    • Women unable to carry a pregnancy to term or who have experienced recurrent miscarriages
    • Women without a functioning uterus
    • Women unable to conceive through infertility treatment, including donor eggs
    • Male same-sex couples (gay couples)
    • Men without a partner who want to parent and want to be genetically related to their child

    + Different Types of Surrogacy

    • Traditional surrogacy: the surrogate is inseminated with either the intended father’s sperm or donor sperm. The surrogate is genetically related to the child since her egg was used.
    • Gestational surrogacy: an embryo created through in vitro fertilization (IVF) is transferred into the uterus of the surrogate and she carries the baby. The surrogate’s egg is not used and she is not genetically related to the child. The egg and sperm used to create the embryo may come from both the intended parents or from donors.
    • Altruistic surrogacy: the surrogate does not receive financial compensation, although her expenses may be covered. Usually the surrogate knows the intended parent(s) and is motivated by the desire to give this gift to them.
    • Commercial surrogacy: the surrogate is compensated for her time, travel, and all expenses not covered by insurance. Allowable compensation is governed by state law. Usually the surrogate and the intended parents do not know each other before they entered into this surrogacy arrangement.
    • Known surrogate: intended parent(s) know the surrogate before entering into the surrogacy arrangement. Usually, the surrogate is a family member or friend.
    • Unknown surrogate: intended parent(s) hire a surrogate either independently or through an agency that they do not know before entering into a surrogacy arrangement.

    + Is Surrogacy Legal?
    In the United States, state law, not federal law, governs surrogacy arrangements, and the states are all over the board on how they deal with surrogacy. Pay attention to the law in the state where the child will be born. Some states have no laws in regard to surrogacy contracts while others prevent all types of surrogacy. Many states forbid compensating the surrogate while others allow certain specified expenses to be paid by the intended parents. Some states only allow gestational surrogacy. Other countries also vary considerably on what they allow for surrogacy arrangements.  We strongly recommend you check the laws in your state and consult with legal specialists before entering into a surrogacy arrangement.

    + How Much does Surrogacy Cost?
    This is hard to pin down because there are so many moving parts, but the estimated total cost for surrogacy in the US:

    • Without using donor egg: $70,000 – $90,000
    • With donor egg:  $100,000 – $150,000+

    Factors that could increase the cost include:

    • More than one IVF cycle, especially if another fresh cycle is required
    • Medical complications requiring bed rest
    • Lack of medical insurance coverage
    • Multiple births

    + How Much are Surrogates Paid?
    Typically a surrogate is paid between $25,000 – $40,000.

    + Ten (+2) Things You MUST Talk About With Your Surrogate and Attorney
    You must have a contract with your surrogate and both the surrogate and intended parents should have their own attorney. Make sure your contract addresses the following:

    1. Surrogate compensation. What extenuating circumstances will result in increased compensation (multiples, required bed rest, invasive procedures)?
    2. Who decides on how many embryos to transfer?
    3. Where do all parties stand on abortion or selective reduction and under what circumstances?
    4. Who selects the obstetrician and what to do if either the surrogate or intended parent wants to change doctors?
    5. How involved will the intended parents be with the pregnancy and birth (doctor visits, talking with doctor if not able to attend office visit, present at the birth)?
    6. What standard prenatal testing will be done?
    7. What expenses are eligible for compensation (travel, maternity clothing, child care, housekeeping, lost wages)?
    8. Guardianship instructions in case both intended parents die
    9. Future contact between the surrogate and the child
    10. Confidentiality issues
    11. How will parental rights will be finalized?
    12. Insurance issues (life, medical and disability)

    + How To Choose a Surrogacy Agency
    You do not have to use a surrogacy agency, but there are advantages. Primarily, the agency will do the screening, money handling, and run interference between the surrogate and intended parent(s) if necessary. Get recommendations from either your reproductive endocrinologist or your reproductive law attorney.

    Before making a decision, you should always ask the following questions.

    1. How long have you been in the business of finding surrogates for third party reproduction?
    2. How many surrogacy arrangements have you facilitated in the last year? In the last two years?
    3. How long does it usually take to find a surrogate for intended families such as ours?
    4. How much does it cost and when is the money due?
    5. If the IVF cycle fails, how are compensation and fees handled?
    6. What type of screening is done before accepting a surrogate into your program (psychological, medical, background check, drug or alcohol use, sexually transmitted diseases)?  Is the surrogate’s husband also screened for supportiveness and prepared for what is expected of a surrogate?
    7. Can intended parents receive a full copy of all psychological screenings and not just a summary?
    8. What efforts are made to get all medical records from previous pregnancies of the surrogate?
    9. Is ongoing counseling support offered to surrogates and do the intended families have to pay extra for this service?
    10. Is the money the intended parents pay for the surrogacy arrangement held in a licensed and bonded escrow account? Can you provide the intended parents or their attorney with a copy of the bond insurance policy? In essence, you want to make sure that any money you pay is safe in case the agency goes out of business or tries to play fast and loose with your money.
    11. Does the agency have Errors and Omissions Insurance?
    12. How many case managers are employed and what is their caseload?
    13. Is there someone on staff to answer emergency questions after work hours or on weekends?
    14. Name and contact information for intended parents that have used the agency in the last year.

    + How to Find an Attorney that Specializes in Surrogacy

    • American Academy of Assisted Reproductive Technology Attorneys (AAARTA) is a credentialed, professional organization dedicated to the advancement of best legal practices in the area of assisted reproduction and the protection of the interests of all parties, including the children, involved in assisted reproductive technology matters. They have a list of members.
    • The American College of Assisted Reproduction and Adoption Lawyers (ACARAL) is a professional organization of attorneys specializing in adoption and assisted reproduction law.  They have a list of members.
    • The American Bar Association Section of Family Law has a Committee on Reproductive & Genetic Technologies. Attorneys specializing in reproductive law are not required to be a member of this committee, but membership is evidence that they are up on the latest developments in this area of law.
    • American Society of Reproductive Medicine allows non physicians as professional members. Not many attorneys are members, but this is an indication that they keep up with the science, which is important in this area of the law.
    • Ask your reproductive endocrinologist (infertility doctor) for a recommendation.

    + Is it possible for the intended mother to breastfeed a baby born via surrogacy?
    Yes it is possible, but not necessarily easy. Creating a Family has extensive resource on inducing lactation in women that have not been pregnant and are adopting a child or having a child through surrogacy. Some of our resources that you will find helpful are:

    In addition to these resources we have many more on the Adoptive/Surrogacy Breastfeeding page.

    Creating a Family has many resources on surrogacy. A few we think you will find particularly helpful are:

    Many more Creating a Family radio interviews with experts, videos, blogs, fact sheets, and Q and A’s with Experts on surrogacy can be found at the icons below.

    Sources: Creating a Family radio shows listed below
    Image credit: Yoyental


    Additional Resources

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    Creating a Family Radio Shows on Surrogacy

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    Creating a Family Blogs on Surrogacy

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    Creating a Family Factsheets, Tips on Surrogacy

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    Creating a Family Videos on Surrogacy

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    Expert Q and A's on Surrogacy

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