Current baby-making status: It's complicated. Your plans for what was supposed to be a baby-making party of two just got a bit more crowded. Whether from infertility or other biological challenges, you probably never thought it would take a party of three, plus a handful doctors and a lawyer to achieve your dream. However, if the one thing you are clear on is that you and/or your partner would like to have a biological tie to your child, your option is surrogacy.
Reasons to Pursue Surrogacy
First, it is important to identify the reason for pursuing surrogacy. This can help to determine the best option for you and your partner. Common reasons why people consider gestational surrogacy include:
- You or your partner are missing a uterus or have severe uterine issues
- There is a history of multiple failed fertility treatments
- You are a gay male couple or single man
- Pregnancy would be life-threatening
- Genetic/chromosomal abnormalities in one or both partners
As you probably have discovered the world of assisted reproduction loves acronyms. Getting a grasp of how the roles are defined in surrogacy is a necessary first step.
- You and your partner are the intended parents (IP).
- The woman who carries the baby for the intended parents is called either a surrogate or a gestational carrier (GS) depending on the type of surrogacy arrangement you choose. The surrogate/gestational carrier can also be referred to as the surrogate mother.
- The relationship that is established with a gestational carrier or surrogate is often referred to as a partnership.
There are multiple ways that surrogacy can be structured. To start, there are two different types of gestational surrogacy arrangements and these can be further divided into two different surrogacy agreements for you to consider. Although surrogacy is certainly a partnership, it is easier to break it down in terms of agreements vs. arrangements. Got it? Let’s dive in, shall we?
Types of Surrogacy Arrangments
There are two types of surrogacy arrangements: traditional surrogacy and gestational surrogacy. These are very different arrangements that will depend on your own personal situation and in some cases will depend on the specific state and country your potential carrier will give birth in.
1. Traditional Surrogacy
Despite the title, traditional surrogacy is actually less common. In a traditional surrogacy arrangement, the surrogate not only carries the pregnancy but also contributes her egg that is generally fertilized with sperm from one of the IPs. This is typically done via intrauterine insemination (IUI). (Read about how intrauterine insemination works.) While the surrogate will have a biological tie to the resulting baby, the established parentage (legal action establishing parentage) is assumed to be the IP(s).
Because each state is different in how they govern surrogacy, this type of arrangement is often not favorable. Although rare, if the surrogate mother were to want to parent the baby post-birth, things could get complicated fast. As a result, there are several states that actually ban the use of traditional surrogacy arrangements or will actually not recognize legal documents establishing the IP(s) parentage.
Types of Surrogacy Agreements
Along with either type of surrogacy arrangements, there are surrogacy agreements that deem the process to be either compensated or compassionate. The agreement essentially outlines any financial compensation that is to accompany the partnership.
Before entering into a gestational surrogacy partnership with your surrogate/gestational carrier, all parties will need to come to terms with the type of agreement that will be made. There will be a legal document /contract in place also known as a gestational surrogacy agreement (GSA) that will define this.
1. Compensated Agreements
In a compensated surrogacy agreement, the gestational carrier/surrogate will be financially compensated for carrying the pregnancy for the intended parents. Compensated agreements were previously referred to as commercial agreements, which is now a less common term.
2. Compassionate Agreements
In a compassionate surrogacy agreement, the gestational carrier/surrogate agrees to wave the surrogacy fee. In most surrogacy agreements, whether compensated or compassionate, the intended parents take on all of the costs that will be incurred throughout the gestation period related to the surrogacy, both pre and post-birth. Compassionate agreements were previously known as altruistic agreements, but this is also now a less commonly used term.
Something to note: there are some states and many countries where any form of surrogacy is both banned and deemed illegal. Then there are some states and countries where compensated surrogacy is completely barred. This is why if you do consider surrogacy as your option to build a family, consider retaining a lawyer who specializes in adoption, surrogacy, and reproductive law. They’ll know surrogacy specific ins and outs of each individual state or country.
Choosing Your Ideal Surrogacy Arrangement
So how do you choose which option is best for you and your partner? This involves understanding what is physically possible, what you are comfortable with both personally and financially, and lastly a legal opinion regarding your options where you live.
1. Talk to your Fertility Specialist
First things first, talk to your fertility specialist. This is likely not your specialist’s first surrogacy rodeo and they will take into consideration a full overview of your history. In some cases, one of the IPs may not be able to physically undergo an egg retrieval, which will likely shape your needs. These are decisions that will be best guided by your doctor.
2. Talk With Your Partner
Next, you and your partner start talking. Talk about what you are personally comfortable with in regards to the best type of surrogacy arrangement. What are the practical details and personal feelings that are involved?
This is also a good time to talk about what you can financially afford to help decide which agreements are even feasible. While surrogacy can be extremely pricey, there are some gestational carriers and surrogates who are willing to provide low-compensation arrangements and of course there is also the possibility of a compassionate agreement.
3. Talk to An Experienced Attorney
Lastly, talk (Is anyone noticing a trend here?) to an experienced attorney that specializes in adoption and surrogacy law. They will help guide the way in terms of what your legal options are in regards to your state or the state that your gestational carrier/surrogate resides.
This process starts with understanding your options and knowing that surrogacy is not an insurmountable way to build your family. Surrogacy can be a beautiful life-giving journey that can be both fulfilling for you and the gestational carrier/surrogate that your partner with.