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Surrogacy – by J. Matthew Miller

On Behalf of | Sep 29, 2011 | Family Law

J. Matthew Miller

Surrogacy by J. Matthew Miller

What is surrogacy?

Presently in the United States millions of Americans have fertility issues. These issues may involve the potential father, the potential mother, or both intended parents. In years past couples who realized fertility difficulties had few options other than to attempt to adopt.  While adoption is very fulfilling and a wonderful solution for infertile couples, medicine and modern science now allow fertility challenged  couples to have a child and to participate in the birth process from conception.  More importantly, medical advances also allow fertility challenged couples to have a child that is genetically/biologically related to one or both members of the couple through surrogacy.

Surrogacy is simply the interaction between intended parents who desire to have a child but cannot without assistance, and a woman who acts as the surrogate to assist the intended parents in having a child. The parties desiring to have a child are generally deemed the “intended parents” because they are the people that will ultimately be the parents and legal guardians of the child that is produced through the surrogacy.  There are two primary types of surrogacy relationships: “traditional surrogacy” and “gestational surrogacy.” In a traditional surrogacy the child born of the relationship is generally the biological child of the surrogate mother and  the intended father.   As such, the surrogate’s own biological egg is utilized to conceive and produce the child. In this scenario the surrogate mother becomes pregnant through artificial insemination of her egg. The sperm used to fertilize the surrogate’s egg is generally provided by the intended father but may also come from a sperm donor if the intended father is also fertility challenged.   The child born of the surrogate is therefore genetically related to the surrogate.

By contrast, in a gestational surrogacy, the biological egg of the intended mother or a donated egg is used instead of the egg of the surrogate. The egg of the intended mother/parent or the donated egg is then fertilized with the semen of the intended father or that of a donor and then implanted in the surrogate through in vitro fertilization and a transfer procedure. The baby born of the relationship is the biological child only of the intended parents and has no genetic link to the surrogate.

Legal issues

Gestational surrogacy is presently the most popular type of surrogacy as it involves a genetic link to the intended parents.  If you are considering surrogacy as either an intended parent, or as a potential surrogate there are numerous legal issues that must be addressed. Such issues are largely controlled by the law of the state in which the child will be born and the laws in the state in which the child will live once he or she comes home with the intended parents. These issues are addressed in a surrogate contract between the intended parties and the surrogate. Any compensation of the surrogate, as well as reimbursement of medical costs and expenses to be incurred by both the surrogate and the child are also addressed in the contract, as well as all terms and conditions of the surrogacy itself.

Depending upon the specific state’s law in issue and whether the surrogacy relationship is a traditional surrogacy or a gestational surrogacy, an adoption of the child along with termination of the surrogate’s parental rights may or may not be necessary. As the surrogate arrangement invokes complex issues falling under the parties’ constitutionally protected parental and reproductive rights it is further essential that legal representation be obtained; and, that the specific laws of your state and the state of the surrogate be carefully consulted as the laws vary widely from state to state on enforcement of surrogate contracts, and even the legality of a surrogate contract.

Presently some 26 states have established law that recognize and address surrogacy. Several other states have laws that hold that surrogacy agreements are invalid to one extent or another, or are only valid if certain specific criteria are satisfied, even though surrogacy itself is not prohibited.  Accordingly, the specific legal ramifications of the surrogacy should always be carefully addressed with a lawyer well versed in surrogacy representation.


As surrogate mothers provide an extraordinary service for the intended parents, most surrogacy contracts also have built in safe-guards for the surrogate to ensure her protection and compensation; and, to ensure that she does not realize any costs or expenses that are not paid for by the intended parents. However, each surrogacy relationship is different and the terms and specifics of the relationship itself can be as complex or simple as the parties desire.  For additional general information on surrogacy, or to discuss your specific issues please feel free to contact Matt ([email protected]).