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Creating Your Family through Surrogacy/ Using a Surrogate to Have a Baby



Where to Start
Terms and Arrangements
Considering Surrogacy
Finding an Attorney
Surrogacy Law
Selecting an Agency

Where to Start for Information on Surrogacy:

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Definition of Surrogacy Terms and Surrogacy Arrangements:

  • Surrogate - The woman who is carrying the baby
  • Intended Parent(s)- The person or people that made the surrogacy arrangement and intend to raise the child.
  • 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 may come 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 usually 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.

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Who Should Consider Surrogacy:

  • Women unable to carry a pregnancy to term/ Recurrent Miscarriages
  • Women without a functioning uterus
  • Women unable to conceive through infertility treatment, including donor eggs
  • Male same-sex couples
  • Men without a partner who want to parent and want to be genetically related to their child

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How to find an Attorney that Specializes in Third Party Reproduction or Surrogacy:

  • The American College of Assisted Reproduction and Adoption Lawyers (ACARAL) lists 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 for a recommendation.

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Ten items (plus two) to Include in a Surrogacy Contracts/Arrangements:

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 parental rights will be finalized.
  12. Insurance issues (life, medical and disability)

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The Law on Surrogacy:

State law, not federal law, governs this arrangement, 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 contracts. 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. Some states forbid same-sex couples from entering into surrogacy agreements.


List of state laws on surrogacy

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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 surrogate and intended parent if necessary. Get recommendations from either your Reproductive Endocrinologist or your attorney.

  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 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.

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Surrogacy Cost:

This is hard to pin down because there are so many moving parts, but in 2010, the estimated total cost for surrogacy

  • Without using donor egg is $70,000 to $90,000
  • With donor egg is $90,000 to $100,000+

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, twins or triplets.

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Resources for Surrogacy:

  • Infertility Answers Specializing in surrogacy and egg donation education worldwide
  • Organization of Parents through Surrogacy
  • Parents via Egg Donation has an active forum which welcomes parents via surrogacy if they are using donor eggs. Great place to “talk” with others going through the same thing.
  • Surrogacy 101 Blog: Insights and Opinions of a Former Agency Owner and 2x "Independent " Gestational Surrogate
  • Surrogacy: Some Words of Caution is an article by Connie Shapiro, professor of family studies at the University of Illinois at Urbana-Champaign and author of When You're Not Expecting: An Infertility Survival Guide.
  • I saw this article on the front page of the New York Times and sighed. The title, Meet the Twiblings, promised in my mind another one of those articles focusing on the new fangledness of third party reproduction: Gosh darn, look what they've done now. I was sure it would start tongues wagging of designer babies. Well, I was wrong. This one is worth the read. A real story of a real mom through egg donation and surrogacy.

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Image Credit: Trevor Davies

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