Traditional vs Gestational Surrogacy: A Comprehensive Guide
Over the years I’ve been a practicing REI physician at my clinic, I’ve witnessed the hope, challenges, and profound joy that come with the decision to pursue surrogacy. It’s these deeply personal and varied experiences of aspiring parents that inspired me to create this comprehensive guide on traditional and gestational surrogacy.
Navigating the intricate paths of surrogacy can be overwhelming. Whether it’s understanding the different types, grappling with legal complexities, or managing the emotional nuances, each aspect requires careful consideration and empathy. Through this guide, my aim is to shed light on these key areas, drawing from the real-life stories and experiences that I’ve encountered in my practice. My hope is that this information will provide clarity, reassurance, and guidance for those embarking on this life-changing journey to parenthood.
In traditional surrogacy, the surrogate mother is also the biological mother of the child. This means her egg is used, and she is inseminated with sperm from the intended father or a donor. This method is typically chosen in the following scenarios:
Female Infertility Issues: For intended mothers who are unable to use their own eggs due to infertility, premature ovarian failure, or certain genetic conditions, traditional surrogacy offers a biological connection to the child through the surrogate’s egg.
Single Men or Male Couples: Single men or male couples wishing to have a biological connection to their child may opt for traditional surrogacy, as it allows for one parent to be biologically related to the child.
Health Risks for Intended Mother: In cases where pregnancy poses a significant health risk to the intended mother, traditional surrogacy can be an alternative to carry the child.
Cost Considerations: Traditional surrogacy is sometimes less expensive than gestational surrogacy, as it typically does not require in-vitro fertilization (IVF).
- Biological Connection: The surrogate is genetically related to the child.
- Insemination Method: Artificial insemination is typically used.
- Legal Considerations: Traditional surrogacy entails complex legal considerations, often requiring adoption processes or post-birth orders in some states to establish parental rights.
Legal Complexities of Traditional Surrogacy
In the realm of surrogacy, legal complexities can vary significantly, especially when comparing traditional surrogacy to gestational surrogacy. Traditional surrogacy, where the surrogate is the biological mother of the child, presents a unique set of legal challenges, further compounded by varying laws from state to state.
Parental Rights: In traditional surrogacy, the surrogate is the child’s biological mother. This inherently complicates the legal process of establishing the intended parents’ rights. Some states require legal procedures like adoption or post-birth orders to transfer parental rights from the surrogate to the intended parents.
Surrogacy Agreements: The enforceability of surrogacy agreements in traditional surrogacy can vary. While some states recognize and enforce these agreements, others may view them as unenforceable or even illegal. This lack of uniformity adds to the complexity.
Revocation of Consent: In certain jurisdictions, traditional surrogates may have a period during which they can revoke their consent to surrender the child. This period varies by state and can create uncertainty for intended parents.
The legal landscape of traditional surrogacy varies dramatically across the United States, contributing to the complexity of this option:
Permissive States: Some states, like California, are known for being surrogacy-friendly, recognizing and enforcing traditional surrogacy agreements with clear legal processes.
Restrictive States: Other states, such as Michigan and New York, have historically been more restrictive. For instance, New York only recently legalized paid surrogacy and still has stringent regulations.
Grey Areas: Many states fall into a grey area with no specific legislation on surrogacy. In these states, the legal process can be uncertain and dependent on court interpretations.
In the following table, I summarize the traditional surrogacy stance for 10 of the most populous states in the USA:
|Traditional Surrogacy Stance
Please note that while I consider myself one of the top REIs in the country, I am certainly not a lawyer and please do not base your legal decisions solely on my experience. Please speak to a lawyer to help guide you through the minefield of issues that surround traditional surrogacy.
From my experience, traditional surrogacy can be emotionally intricate due to the biological connection between the surrogate and the child. It requires careful consideration and legal safeguards to protect the rights and expectations of all parties involved.
Gestational surrogacy, on the other hand, involves a surrogate who carries a child to whom she has no genetic connection. The embryo is created using an egg from the intended mother or a donor, and sperm from the intended father or a donor, and then transferred to the surrogate’s uterus.
This option is commonly chosen in the following situations:
Inability to Carry a Pregnancy: For intended mothers who are medically unable to carry a pregnancy to term due to uterine issues, significant health risks associated with pregnancy, or after a hysterectomy, gestational surrogacy provides a way to have a biologically related child.
Recurrent Pregnancy Loss: Couples who have experienced recurrent miscarriages or failed IVF cycles may opt for gestational surrogacy as a way to achieve parenthood.
Same-Sex Couples: Gestational surrogacy is a popular choice among same-sex couples, particularly female couples who wish to have a child genetically related to one partner, using donor sperm.
Avoiding Genetic Issues: Since gestational surrogacy uses the egg and sperm of the intended parents or donors, it allows for genetic screening and the avoidance of certain hereditary conditions that might be present in a traditional surrogate’s egg.
Legal and Emotional Clarity: Due to the lack of a genetic link between the child and the surrogate, gestational surrogacy often offers more straightforward legal and emotional dynamics, making it a preferable choice for many.
- No Genetic Link: The surrogate has no biological ties to the child.
- IVF Process: In-vitro fertilization (IVF) is used to create the embryo.
- Legal Clarity: Often involves clearer legal arrangements due to the lack of genetic relation.
Challenges Specific to Gestational Surrogacy
Finding a Surrogate: Locating a suitable gestational surrogate can be a daunting task. It involves finding someone who is physically and emotionally prepared for the surrogacy journey. Many turn to surrogacy agencies for assistance, which can facilitate matches based on compatibility, legal considerations, and psychological readiness.
Legal Issues Around Compensation: The legality of compensating gestational surrogates varies significantly by state. Some states allow for “commercial surrogacy,” where surrogates can be paid beyond reasonable expenses. Others only permit “altruistic surrogacy,” restricting payments to cover medical and other necessary expenses. This legal variability can influence the ease of finding a surrogate and the overall costs involved in the process.
How to Find a Gestational Surrogate?
Surrogacy agencies are often the most reliable resource for finding a gestational surrogate. These agencies maintain a database of potential surrogates and match them with intended parents based on compatibility, legal requirements, and personal preferences. Additionally, some individuals opt for independent searches through fertility clinics, online forums, or personal networks, though this route requires more self-guided management and due diligence.
Below you’ll find some resources you can use to help in the process of identifying a gestational surrogate. (Note, the inclusion of these resources in my list is by no means an endorsement on my part.)
|Circle Surrogacy & Egg Donation
|Full-service agency offering surrogate matching, legal, and support services
|Matching with surrogates, support through the surrogacy process
|Surrogacy and egg donation services, including matching and legal guidance
|Informational resource, surrogate matching, and support services
|Surrogacy agency providing matching, legal, and counseling services
|Worldwide Surrogacy Specialists
|Full-service agency specializing in matching, legal, and support throughout surrogacy
|The Surrogacy Experience (TSE)
|Offers surrogate matching, coordination of services, and support
|Consulting and referral services for surrogacy, with a focus on international options
|A subreddit for discussing surrogacy, sharing experiences, and seeking advice
|A supportive community for those dealing with infertility, including discussions on surrogacy
Are You Allowed to Compensate A Surrogate?
Below is a chart showcasing the laws surrounding the payment of gestational surrogates in the 10 most populous states in the USA. The categories are “Commercial Allowed” (where surrogates can be paid beyond necessary expenses), “Altruistic Only” (where payment is restricted to necessary expenses), and “Varies or Unclear” (where laws are ambiguous or vary within the state).
In my clinic, we’ve observed that gestational surrogacy often offers a clearer delineation between the surrogate and the intended parents, which can simplify the emotional and legal aspects of the surrogacy process.
|Payment Laws for Gestational Surrogates
|Commercial Allowed (recently changed)
|Varies or Unclear
|Varies or Unclear
|Varies or Unclear
The challenges in gestational surrogacy, from finding the right surrogate to navigating the legalities of compensation, highlight the need for comprehensive guidance and support. In my practice, I’ve seen the importance of such support in ensuring a smooth and successful surrogacy journey.
Can a Gestational Surrogate Change Their Mind?
One of the most common concerns I hear from my patients about gestational surrogacy is whether the gestational surrogate might change her mind and want to keep the baby?
The legal framework in place for gestational surrogacy generally provides a more robust protection for intended parents compared to traditional surrogacy. Since the surrogate has no genetic ties to the child, the legal agreements typically stipulate that the intended parents are the legal parents. These agreements are usually finalized and signed before the pregnancy begins.
In most cases, with proper legal and psychological preparation, the chances of a gestational surrogate deciding to keep the child are minimal. It’s crucial for intended parents to work with experienced legal professionals and reputable agencies to mitigate this risk.
However, it’s important to acknowledge that surrogacy, like any form of assisted reproductive technology, involves complex emotional and legal dimensions. While rare, there have been cases where disputes over custody have arisen, underscoring the need for clear legal agreements and thorough understanding of state-specific surrogacy laws.
In conclusion, while the risk exists, careful planning, legal guidance, and choosing the right surrogate can significantly reduce the likelihood of a gestational surrogate changing their mind. In my practice, emphasizing these aspects has been key to providing reassurance and clarity to intended parents embarking on their surrogacy journey.
Comparative Analysis: Traditional vs. Gestational Surrogacy
I’ve covered a lot of ground in the above text, here is a quick summary outlining the key differences between traditional and gestational surrogacy.
Deciding between traditional and gestational surrogacy is a deeply personal choice. It involves considering various factors like the emotional connection, legal implications, financial implications, medical procedures, and, most importantly, what feels right for you and your family.
In my practice, I’ve seen couples and individuals find joy and fulfillment in both paths. The journey of surrogacy, regardless of the type, is a testament to the resilience and commitment of those yearning to build a family.
Surrogacy is a path filled with hope, challenges, and profound joy. Whether you choose traditional or gestational surrogacy, it’s essential to be well-informed and supported throughout your journey. Remember, every surrogacy story is unique, and the right choice is the one that aligns with your personal, emotional, and practical needs.
My name is Lucky Sekhon and I'm a double board-certified OBGYN, and Reproductive Endocrinologist & Infertility specialist practicing at RMA of New York. My mission is to empower women with practical and scientifically accurate information to make the right fertility decisions for themselves.
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