Gestational Surrogacy Laws

Gestational Surrogacy is the most common form of surrogacy that is performed in the United States, and for good reason.

Gestational surrogacy has become the gold standard for all assisted reproductive treatments that require surrogacy. Almost all advancements in both surrogacy technology and litigation are concerned primarily with gestational surrogacy. With gestational surrogacy, both genetically and lawfully, the child belongs solely to the intended parents. Starting a family of your own can be a difficult process for some couples and by first understanding, your legal rights as a parent will help you choose the surrogacy program which is right for your family.

If you or your partner has received the heart-wrenching news that you cannot safely carry a child of your own, don’t despair. Gestational surrogacy is an option that has been available since the 1980’s. Since then, states and countries worldwide have developed laws that will help make your, and your family’s, dreams a reality.

What is Gestational Surrogacy?

Gestational surrogacy is when a woman who is of no genetic relation to the intended parents or the future child, is implanted with genetic material from the intended parents and carries the pregnancy to completion. Gestational surrogacy can be carried out either domestically or internationally. Additionally, gestational surrogacy in the US can be compensated or altruistic, depending on the laws of the surrogate mother’s home country/state, and the preferences of the intended couple and surrogate mother.

What are the Benefits of Gestational Surrogacy?

Gestational surrogacy provides both intended parents and surrogate mothers alike with a myriad of benefits. Most of the benefits of gestational surrogacy have to do with legal protections of all parties involved.

Versus Traditional Surrogacy

Traditional surrogacy is a surrogacy in which the surrogate mother supplies the egg to produce the child and is otherwise artificially inseminated with the intended father’s sperm. Traditional surrogacy can blur the lines between the child’s legal parentage and can result in emotional difficulties for the surrogate mother. Knowing that she is carrying a child that is directly related to her, but will have to give up, can be hard.

Genetic Benefits

The genetic benefits of gestational surrogacy are essential that the future child is an exact genetic heir of the intended parents. In most gestational surrogacies, the intended parents both supply genetic material (egg and sperm) to create the child. In the event that one intended parent is unable to supply genetic material for the child, donor material can be used.

Legal Benefits

Many surrogacy friendly states and countries have laws in place which specify that the Intended Parents are the legal parents of a child born via surrogacy. Due to the legalities in the host and home country, some jurisdictions require at least one of the IPs to be genetically related to the baby and in others, such as the USA, double donors can be used.

In some states/countries, full custody is awarded to the intended parents via a court order and others require a legal process lasting several weeks or even months. Some lawmakers speculate that gestational surrogacy prevents the surrogate mother from becoming overly attached to the child, as it is of no relation to her whatsoever. Some concerns have arisen in the past of traditional surrogate mothers petitioning to keep the child. Owing to the genetic relation, this desire to keep the child could give the surrogate mother a legal foothold.

Cute baby Thinking about Gestational Law

How Do Laws View Gestational Surrogacy?

Application

Gestational surrogacy can be utilized by many intending couples for a multitude of reasons. It can be used should the intended mother be unable to carry the child to term safely herself. Gestational surrogacy can also prove useful should egg or sperm donation be required in the event that either intended parent is unable to provide their own genetic material. It’s also an excellent option for the LGBTQ+ community who wish to have a child of their own.

Gestational Surrogacy in the United States

Laws regarding gestational surrogacy in the United States vary depending on what state the intended parents, or their chosen surrogate, reside in. Some states have no laws regarding surrogacy whatsoever, while others outright prohibit it. However, some states have what are considered surrogacy-friendly laws.  The states that have a very clear cut legislation, include:

  • California
  • Connecticut
  • Delaware
  • Maine
  • Nevada
  • New Hampshire
  • District of Colombia

States with favorable laws are the following:

  • Alabama
  • Georgia
  • Hawaii
  • North and South Carolina
  • Oregon
  • Rhode Island
  • South Dakota
  • Hawaii
  • Kansas
  • Kentucky
  • Maryland
  • Massachusetts
  • Minnesota, Missouri
  • New Mexico
  • Ohio
  • Oklahoma
  • Pennsylvania
  • Vermont
  • Wisconsin

The law is not so clear and Intended Parents should proceed with caution in the following states:

  • Alaska
  • Arizona
  • Idaho
  • Indiana
  • Iowa
  • Mississippi
  • Montana
  • Nebraska
  • Tennessee
  • Virginia
  • Wyoming

Surrogate friendly laws are the ones that recognize both commercial and altruistic surrogacy. They also have laws in place that facilitate straightforward and easily enforceable ways for the intended parents to be recognized as the child’s legal parents. However, should you live in a state that does not have surrogacy-friendly laws, you can still use a surrogate that lives in a surrogate friendly state. This does require that both the contract and the pregnancy are carried out in the surrogate friendly state.

States that do not allow surrogacy or that outright prohibit the practice of surrogacy are

  • Michigan
  • New York
  • North Dakota
  • Arizona

Washington state is changing its legislation to make surrogacy legal.

It is important to note, however, that many states have either no laws or very few laws that recognize surrogacy agreements. There are also states that require that couples be legally married, or are heterosexual. It’s vitally important that both surrogate mother and intended parents be familiar with any surrogacy laws in their respective states.

Gestational Surrogacy Abroad

Gestational surrogacy abroad is another option for intended parents that do not live within a surrogacy friendly state, however the procedures for getting the intended parents legally recognized as the child’s parents, as well as procedures on how to gain the child rightful citizenship can be a complicated process, so it’s always wise to consult a professional agency, should you be considering gestational surrogacy abroad.

Laws regarding gestational surrogacy in other countries vary just as widely as they do between states. Always be familiar with the surrogacy and immigration laws in any country you plan on seeking a surrogate through.

Heavily Pregnant Gestational Surrogate

How is Gestational Surrogacy Performed?

In traditional surrogacy, as an egg does not have to be donated or replaced, the surrogate mother is artificially inseminated with the intended father’s sperm, either using IUI treatments, or another form of artificial insemination.

Gestational surrogacy, by definition, requires that both the egg and the sperm combined for the child must be sourced from someone who is not the surrogate mother. These genetic materials are then combined and implanted using In Vitro Fertilization (IVF).

In Vitro Fertilization

IVF is the process by which genetic material, in the form of human sperm and egg, are combined in a lab setting. These materials are sourced from the intended parents whenever possible. To source eggs, doctors perform a short outpatient procedure using ultrasound. It is not uncommon for intending mother or donor to go through a series of hormonal shots to induce egg production.

Once the eggs and sperm have been sourced, the two are then combined outside of the human body, generally in a laboratory setting. When these materials combine, they become an embryo. The embryos are then monitored for success and any viable embryos are transferred into the surrogate mother’s womb to mature as normal.

Medical Advances

Some states allow additional medical procedures to take place that improves success rates among IVF patients. These procedures include egg and sperm preparation, embryo culture and selection, as well as cryopreservation. Additionally some states and services – such as Ilaya –even allow Preimplantation Genetic Diagnosis (PGD). With PGD, and any state that allows this procedure, intending parents can opt to have their genetic material scanned for pre-existing genetic disease and abnormality, some institutions can even tell you the sex of your baby at the embryonic stage.

Final Thoughts

It is said that where there is a will, there is a way, and this never rings truer than it does for couples that struggle with infertility. Understanding infertility causes and options is an important part in the process of starting a family. Making the choice to create a family may not come easily for some, but it is a choice that is vitally important. Deciding to start a family is one of the most rewarding and inspiring decisions that any of us can make within our lives. Don’t give up on your dreams, no matter how difficult or unobtainable they may seem, because there is always a way to make them come true!