What Is It, What to Expect, Laws & More

Gestational surrogacy, also known as IVF surrogacy or host surrogacy, is the process where a person carries a pregnancy for someone else — the “intended parents.”

During this process, the gestational surrogate becomes pregnant through in vitro fertilization (IVF), where a fertilized embryo is transferred into the surrogate’s uterus. Unlike traditional surrogacy, though, the gestational surrogate is not the egg donor.

“In gestational surrogacy, the embryos contain either an intended parent’s eggs or donor eggs,” explains Amira Hasenbush, a family formation lawyer from Los Angeles, California, who specializes in helping families with assisted reproduction. “[The gestational surrogate] is not donating her own genetic material. Rather, she is only carrying the pregnancy.”

Gestational surrogacy is much more common than traditional surrogacy, which has become very rare in the United States because of the complicated emotional and legal complexities associated with traditional surrogacy.

Between 1999 and 2013, about 18,400 infants were born in the United States via a gestational surrogate.

Gestational surrogacy is a way for a couple or individual parent to grow their family if they are unable to carry the pregnancy themselves.

It is, for example, one way LGBTQIA+ couples can become parents. It’s also a way for single men to become parents, or it can be used by people dealing with infertility.

For example, people who have had difficulties getting pregnant during IVF themselves may consider a gestational surrogate, as may parents who have had repeated unexplained miscarriages or stillbirths.

Parents who have certain medical conditions that make pregnancy life threatening or unsustainable might also consider gestational surrogacy. Such medical conditions could include:

  • heart disease
  • kidney disease
  • lupus
  • cystic fibrosis
  • past reproductive cancers
  • severe diabetes
  • history of preeclampsia
  • Asherman’s syndrome
  • untreatable uterine adhesions
  • uterine malformations

People may also consider gestational surrogacy if they don’t have a uterus, either due to a congenital cause (such as Müllerian agenesis) or hysterectomy.

When looking for a gestational surrogate, you can either go through an agency or ask someone you know.

The matching process with your gestational surrogate is very important. You will likely want to choose someone who has similar:

  • values
  • religious beliefs
  • ideas about what a healthy pregnancy looks like

This will help make the legal negotiations with your gestational surrogate easier and help give you peace of mind while they carry your child.

Several states, such as New York, give rights to your gestational surrogate, which allow them to make decisions about the pregnancy and birth, so making sure you share similar values can make the process easier.

Using an agency

Agencies can help match you with a gestational surrogate — and support you and your surrogate through the process.

If you decide to use an agency, a good place to start your search is by asking your doctor at your fertility clinic for recommendations of agencies they have heard good things about. You can also join a local RESOLVE support group.

Even if you get a recommendation, though, make sure to ask for references from the agency and meet with them to inquire about their services and their matching process with a surrogate. If something feels off, look for a different agency. There are scams or agencies that might not have your best interests at heart.

Some states, like New York, require agencies to have licenses. If you live in a state that requires licensing, make sure that your agency is properly licensed.

With many agencies, you may pay fees to compensate your gestational surrogate, as well as pay fees to the agency, though that varies by state and country.

Using someone you know as a surrogate

You can also use someone you know as your gestational surrogate, such as a friend or family member.

There are some advantages to doing it this way. For one, it might cost you a little less and you might find it easier to trust your gestational surrogate. After all, if they are a friend or family member, your values might more naturally align.

Still, remember that gestational surrogacy is complicated. There are a lot of ethical, legal, and psychosocial dynamics involved, so make sure you consider how that might impact your relationship and your comfort level.

For example, Megan Lentz, whose second baby was born with the help of her sister acting as her gestational surrogate, says there were some awkward moments.

“I felt weird telling my sister things she could and couldn’t do in the pregnancy,” she says. “In hindsight, I probably should have added more things to the contract just to help me avoid needing to state my wishes about things during the pregnancy.”

You might need to check local laws, too. Some states and countries require an agency to be involved.

“If you decide to use a known carrier, I’d recommend still considering using the services of an agency for the administrative stuff,” says Lentz. “There are a lot of moving parts, many of which have to be done by certain dates, and it was really hard keeping track of everything.”

Whether you go through an agency or choose a gestational surrogate you know, there will still be some screenings involved before the process can continue.

“The surrogate must have previously had a child and her prior medical records will be reviewed,” explains Dr. Lauren Sundheimer, a double board certified reproductive endocrinologist and infertility specialist and OB-GYN at CCRM Fertility Orange County. “She will then undergo a medical screening, as well as psychological screening.”

The medical screening might involve:

  • a Pap smear
  • a physical exam
  • an infectious disease screening
  • blood work
  • an ultrasound

Generally, gestational surrogates are between the ages of 21 and 42, though many doctors prefer them to be under age 35 with a history of healthy pregnancies and full-term delivery.

Some agencies or fertility centers may have additional requirements for surrogates as well. For example, some require gestational surrogates to have certain BMIs or to have not had too many cesarean deliveries.

There will also be egg and sperm donor testing to minimize the risk of infection to the gestational surrogate.

Then, the gestational surrogate will begin taking hormones to help prepare their uterus for embryo transfer. The egg and sperm will either be donated by the intended parents or a donor, and fertilization of the eggs will be done via IVF to produce embryos. When the embryos are ready, they will be implanted in the surrogate, usually about 3 to 5 days after fertilization.

From there, the process varies by state and country after pregnancy has occurred.

“In the state of California, once the surrogate is pregnant, we can ask a court for a judgment recognizing the intended parents as the legal parents and excluding the surrogate as a legal parent,” says Hasenbush. “In other places, sometimes this has to wait until after the birth and might have to be treated more like an adoption.”

Donor eggs vs. intended mother’s eggs

Depending on your reasons for opting for gestational surrogacy, you have the option of either using your eggs or a donor’s eggs.

“If you use the intended mother’s eggs, then the intended mother has the added benefit of being genetically related to her child, even if she couldn’t carry the pregnancy,” says Hasenbush.

However, this is not possible for all intended parents.

“Embryo quality is essential to a successful surrogacy journey and there may be instances where a donor’s eggs, which are carefully evaluated, contribute to higher embryo quality,” explains Nazca Fontes, founder, and CEO of ConceiveAbilities Surrogacy and Egg Donation Agency.

For example, age or genetic concerns could mean it is a better choice to use a donor egg.

Some parents may also not be able to produce their own eggs.

Donor eggs and semen are generally available through fertility clinics or donor databases.

While the costs of gestational surrogacy can vary widely, especially depending on whether you are paying fees to your surrogate or an agency, it’s still generally a pretty expensive process.

Fees to surrogates in the United States are estimated to be between $20,000 and $55,000.

Intended parents also have to pay for:

  • the surrogate’s medical care
  • the surrogate’s attorney
  • travel expenses
  • health insurance

Agency fees, even if you use a known surrogate, can be pretty high too.

As a result, Hasenbush says “gestational surrogacy in the United States generally costs over $100,000.” And that’s before the cost of procuring donor eggs, which can cost another $15,000.

IVF doesn’t always work on the first try, so you could pay more if you need to restart the process of finding a new surrogate or performing IVF.

“If you are out of the state or country where the surrogate lives, there could be increased travel expenses and legal fees to make sure everything translates across borders,” says Hasenbush.

Fees as an employee benefit

Some employers have started offering fees associated with surrogacy as an employee benefit.

If you are considering surrogacy and you or your partner are employed, consider checking with your benefits provider to learn more about fertility and surrogacy benefits they may offer.

Even if you use a known surrogate, you both will still need a lawyer to work out the surrogacy agreement.

“Lawyers draft contracts that lay out the rights and responsibilities between the parties,” explains Hasenbush.

For example, it could help lay out terms for what to do if the fetus develops a genetic condition, if the surrogate becomes pregnant with multiples, or if certain medical conditions develop in pregnancy. It will also lay out the surrogate’s responsibilities during the pregnancy.

You’ll need to find lawyers who are familiar with the laws of surrogacy in the state where you reside or where your surrogate is located, because the laws around gestational surrogacy vary from state to state. There is no federal law on gestational surrogacy.

In New York, for example, gestational surrogacy only became legal in the state as of February 15, 2021, and all surrogacy agreements must abide by state laws that protect both the intended parents and surrogates.

It’s illegal in some states and countries

“Some states believe that surrogacy exploits women and is equivalent to ‘baby-selling,’” explains Hasenbush. “It is against their public policy, so they make it illegal there.”

However, those states are the minority in the United States, though some states make certain types of surrogacy illegal.

Compensated surrogacy arrangements, for example, are not legal in every state or every country. For example, it’s illegal in Michigan, Nebraska, Louisiana, the United Kingdom, Thailand, Cambodia, and China.

Only a few states allow traditional surrogacy, for example, where the surrogate uses their own egg, in part due to the well-known Baby M case: In 1985, a New Jersey traditional surrogate decided she wanted to keep the baby she gave birth to, even though it had been promised to a couple. The New Jersey Supreme Court gave custody to the couple, though.

Can a surrogate keep the baby?

This is a valid fear, especially after the Baby M case.

However, says Hosenbush, if proper screening and legal procedures were followed, the gestational surrogate will not be able to keep the baby.

In fact, that is why gestational surrogacy has become much more common in the United States compared with traditional surrogacy: There is less risk to all parties.

“If the surrogate is also the biological mother,” explains Fontes, “she could have legal grounds to challenge custody or could, conversely, be left with medical and financial responsibility for the baby.”

However, to ensure that you’re protected, you need a lawyer to make sure you’re in a state or country that allows gestational surrogacy.

“Using a surrogate does not guarantee a healthy full-term delivery,” says Sundheimer. “A surrogate can have complications in pregnancy and with delivery, just like any other pregnancy.”

A 2017 study with 124 gestational surrogates found higher rates of preterm birth and low birth weight than in the surrogate’s own births. There were also higher rates of gestational diabetes, placenta previa, cesarean delivery, and high blood pressure.

A 2016 study also found a higher risk of preeclampsia.

Legally, there are some risks too.

“No one can promise that anyone will comply with the contract,” explains Hasenbush. “Intended parents could stop paying bills and runoff, surrogates could runoff, the surrogate could not get pregnant or have a miscarriage, the parties could have a dispute over whether or not to reduce multiple pregnancies or terminate a pregnancy based on medical need.”

“All of these are very rare occurrences,” she continues, but they could happen. “In an absolute worst case scenario, the surrogate or intended parents could die during the pregnancy.”

Toward the end of the pregnancy, you’ll want to make plans to be nearby your gestational surrogate for the birth, because intended parents take responsibility for their baby right after birth.

And remember that babies don’t always come on time.

“We were living in San Francisco and my sister was in Texas, so we had to plan a lot of logistics ahead of time,” says Lentz of her experience. “We rented a house near my sister for 1 week prior to the due date and then 2 weeks after the due date.”

“We all thought the baby would be early, but he arrived a week late and we weren’t able to extend our rental, so we ended up needing to find another short-term rental to extend our stay by a week,” she continues. “We then flew home with a 2-week-old (with the blessing of the midwife, who did his initial new baby exams).”

Getting a birth certificate

The process for getting a birth certificate depends on state laws, so be sure to check your local laws or ask your lawyer.

For example, “in California, if you have proper legal paperwork in place before the birth, they will fill out the birth certificate forms with the intended parents on them at the hospital,” says Hasenbush.

If you work with a professional agency, they will provide assistance to make sure your names are listed on the birth certificate, as well as any travel documents.

Breast milk

If you want your surrogate to provide breast milk, you will need to discuss that with them to make sure they’re comfortable with it. Some surrogates will be willing to pump for their intended parents, while others will not.

“If a surrogate chooses to pump, she is [usually] compensated for her time,” says Fontes.

If your surrogate isn’t local, though, it could be difficult or expensive to ship breast milk.

Some are willing to give colostrum after birth, even if they do not want to pump long term, which is what Lentz and her sister did.

It’s possible to get donor breast milk sometimes. Formula is also an option and can provide your baby with all of the nutrients they need.

Keeping in touch with the surrogate

“If intended parents and surrogate got along, they often will develop a friendly or extended family-like relationship and stay in touch,” says Hasenbush.

However, some gestational surrogates are not up for keeping in touch, which can be difficult for some intended parents.

Known surrogates might be more willing to stay in touch than agency-provided surrogates.

The decision to use a gestational surrogate isn’t always easy for families, so it’s OK if you think you might need time before deciding it’s the right route for your family.

This is to be expected, particularly if you’ve experienced previous pregnancy loss or IVF disappointment, or have been recently diagnosed with a medical condition that prevents you from getting pregnant safely.

For example, Lentz, whose second baby was born with the help of her sister acting as her gestational carrier, said she felt a lot of emotions — and she didn’t make the decision to pursue gestational surrogacy overnight.

“I was grieving the unexpected loss of my uterus, so it was a lot to process,” Lentz says. “My partner was the one who initially brought up the idea of surrogacy, and at first I was very dismissive to the point where I was almost angry at the idea.”

“We went back and forth a lot on whether to pursue surrogacy or adoption, or whether to even have another child at all,” she continues. “But once I fully processed it and thought through all of my options, the idea started to grow on me until it ultimately felt like the right decision for our family.”

Even once you’ve made the decision, the process isn’t always easy.

“My advice would be to be easy on yourself as you go through it,” says Lentz. “Sometimes it was hard to share in my sister’s joy and excitement, because every time I looked at her growing belly, I thought about all I had lost in not being able to carry my own child.”

It can help to reach out to other intended parents during the process, either by joining a support group or looking for a community online.

“I often felt like I was on an island,” says Lentz. “I wish I had been able to connect with other intended parents.”

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