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Frequently Asked Surrogacy Questions

A Surrogate is a woman who successfully carries and delivers a baby for someone who cannot carry themselves. Surrogacy is a process that is complex, both logistically and legally. More than 40 states are considered surrogate friendly, meaning that Intended Parents and Surrogates entering into legal contracts for the purposes of surrogacy are protected.

Gestational surrogacy is now the most common form of surrogacy in the United States, in which a woman carries a baby created from an egg that is not biologically hers.  IVF is required in order to use a gestational Surrogate because the egg must be fertilized in a lab, grown until it becomes an embryo, and then transferred to the uterus of the Surrogate.

In gestational surrogacy, the Surrogate is not biologically related to the baby.  She understands that at the end of the process, she is not giving up a baby.  She is giving back a baby to its parents.

Before in-vitro fertilization (IVF) became mainstream, traditional surrogacy was the first and only type of surrogacy.  In traditional surrogacy, the Surrogate is carries a baby created using her own egg.  Traditional surrogacy is much less common now due to the legal and psychological components of it, but is still performed under the supervision of a physician using intrauterine insemination (IUI) or in-vitro fertilization (IVF).

It is common for some people to pursue traditional surrogacy without proper research, medical supervision or legal contracts – whether trying to save money or simply not understanding the process fully before beginning.  Because of this, many states do not permit traditional surrogacy and will not recognize the Intended Parents as the baby’s legal parents without considerable frustration or legal costs after the baby is born.

In order to utilize a Surrogate, Intended Parents must have a medical reason they are unable to have a baby themselves.  Whether there is a history of infertility, pregnancy loss, a medical diagnosis making it unsafe for someone to carry a baby, a same-sex male couple, or a male pursuing fatherhood alone, there are a host of reasons why someone may need a gestational surrogate.  Gestational surrogacy would not be possible without in-vitro fertilization (IVF).

Eggs are taken from a woman, then fertilized using the sperm of a man.  Once fertilized in the fertility lab, they become embryos.  The embryo is then placed into the uterus of a gestational surrogate, who is not biologically related to the embryo.  The surrogate then carries the baby until birth.  The surrogate is not considered an employee or paid worker, nor treated like one.  It is a respectful partnership with a team effort approach, and in most cases a close relationship forms between she and her Intended Parents throughout the process.

Most states do not currently have laws specifically permitting gestational surrogacy.  Some states specifically restrict it, some have statutory language addressing surrogacy, and others are silent on the topic completely.  Many times, it is up to each individual judge on a county level to determine enforceability of surrogacy contracts and establishment of parentage.  Because of this, it is extremely important to have legal representation from an attorney experienced in surrogacy and familiar with each courts’ preferences and requirements.

The following states are considered to be Surrogate friendly, meaning that for most Intended Parents a pre-birth order or post-birth order will be granted putting their names directly on the baby’s birth certificate:  Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, Wisconsin, Wyoming.   There are varying restrictions in a few states listed, depending on the biological connection and relationship status of the Intended Parents to their baby.

The Surrogacy Contract, also called a Gestational Carrier Agreement, is a lengthy document outlining all of the terms agreed upon by the Intended Parents and the Surrogate.  The contract should be drafted by an attorney experienced in surrogacy that understands all of the complex issues that commonly occur in surrogacy arrangements.  The Surrogate should also have independent legal counsel representing her best interests who can ensure that the terms are balanced and fair.

The contract is one of the most important components of the process because it clearly outlines the rights and responsibilities of both parties.  The intention of outlining every detail possible is to minimize misunderstandings and conflicts during the journey, while protecting everyone involved.  It addresses compensation and benefits owed to the Surrogate, the Surrogate’s medical risks and responsibilities throughout the process, agreement on issues pertaining to medical decisions such as termination and selective reduction, and even expectations regarding communication during and after the process.

Whether you are an Intended Parent or Surrogate, having an experienced surrogacy attorney throughout the process is a requirement.  Fortunately, there are more than 40 states that support gestational surrogacy and that is because capable attorneys specializing in artificial reproductive technology (ART) law have created a healthy environment within the local judicial courts for it.  Because surrogacy laws vary by state, experiences and ease of the process vary depending on location and judge.

It is also imperative that the surrogacy contract cover everything that needs to be addressed in order to protect both parties in a fair and balanced way.  The contract will also address any state specific statutes and processes required if pregnancy occurs.  In some states, Pre-Birth Orders and Post-Birth Orders are easily granted because the laws support it, and the judges hearing the cases are familiar with surrogacy.  Experienced surrogacy attorneys understand what to include in a surrogacy contract to protect everyone involved, and also know exactly what to include in an Order so that the request for parental rights will be granted.

Supporting documents will include affidavits from the fertility specialist who oversees the IVF process, in addition to affidavits by the Intended Parents and Surrogate.  A hearing is not usually required, but your attorney will let you know if he or she expects that you will need to appear before the judge at any point.  Because the legal process of obtaining parentage is performed in the state that the Surrogate resides in, it is important that you choose an attorney in that state to discuss the process with you.  Any restrictions, special hearings or anticipated delays with filing can be discussed with your attorney so that you can be prepared.

Because some countries do not permit commercial surrogacy, the United States has become a destination for Intended Parents across the world looking for the legal protection and ethical standards the surrogacy community here is known for.  Altruistic surrogacy is still a very large percentage of total surrogacy journeys worldwide, in which the Surrogate does not accept payment for carrying a baby for someone.

Some countries like Australia and the UK only allow altruistic surrogacy, forcing many Intended Parents to pursue commercial surrogacy in other countries if they wish to have a child.  Because of the potential medical risks associated with pregnancy, most altruistic Surrogates volunteer for close friends or family.  When Intended Parents are not fortunate enough to find someone willing to volunteer, then that is when most pursue commercial surrogacy.

Some Surrogates are considered “low-compensation Surrogates,” meaning that they typically request $20,000 – $30,000 in compensation payments throughout the pregnancy to carry a baby.  However, most Surrogates request an average of $45,000 – $55,000 plus additional costs to help someone.  Compensation begins after pregnancy is confirmed, not before, and is paid in installments on a monthly basis until the baby is born.  Family Makers can provide a detailed outline on expected costs and benefits typically paid during the process.

There are numerous pros and cons to Surrogacy, however in most cases the pros far outweigh the cons.  For Intended Parents, Surrogacy ensures that they can be part of the process from beginning to end.  Not only are they encouraged to form a strong foundation of respect and friendship with their Surrogate, but many are able to attend prenatal appointments and be present for the birth of their child.

This allows everyone to experience all of the milestones and excitement of the pregnancy together as much as possible, while also giving Intended Parents the opportunity to know the provider and hospital overseeing medical care of the Surrogate and baby.  Success rates using a Surrogate are far above that of in-vitro fertilization for infertile patients.  Because Surrogates have a history of uncomplicated pregnancies and excellent health, they will typically have a higher chance of getting pregnant and carrying the baby to term.

For some Intended Parents, gestational surrogacy is their only chance to have a biological child.  Those who have overcome significant health issues like cancer or infertility, as well as LGBTQ parents, have the opportunity to grow their families thanks to science and Surrogates who want to help them.  Unlike adoption where the biological mother has the option to change her mind after delivery, Intended Parents are legally protected if the Surrogate lives in one of 40+ U.S. surrogacy friendly states.  Unfortunately, there are also downsides to pursuing Surrogacy.

For some Intended Parents, the cost of the process makes surrogacy unreachable for many.  Many Intended Parents save for years and live below their means in order to afford a single journey.  Those that wish to have multiple children face slightly reduced costs for subsequent journeys.  Trusting a stranger to carry a child takes an extreme amount of trust, which can be especially difficult for those who have experienced a pregnancy of their own.  Staying informed through frequent and open communication with your Surrogate and Family Makers minimizes anxiety associated with this loss of control for most Intended Parents we work with.

Most of us have friends or family who have pursued fertility treatment in order to have a baby.  In fact, 1 in 8 people in the United States struggle to have children, and many of those spend countless dollars and time only to still need a Surrogate after failed attempts themselves. In Gestational surrogacy, an egg is fertilized with sperm in a lab and grows to become an embryo.

Once it has matured, it is placed into the uterus of a Surrogate during a very specific day and hour.  The procedure is called an “embryo transfer” and is painless, usually lasting less than 10 minutes. Because the embryo is placed directly into the uterus using a small catheter, even women who have had their fallopian tubes tied can be Surrogates.  The embryo is not biologically hers, yet she has a very special role for the next nine months if the procedure is successful.

The Surrogacy process begins by creating embryos.  Whether using the eggs and sperm of the Intended Parents, or that of a donor, embryos are created at a fertility clinic and frozen.  The next step is matching one of our amazing Gestational Surrogates (also called Surrogate Mothers) with deserving Intended Parents.  Family Makers will discuss all of the qualities you would like to have in a match and then present profiles to you for consideration.

Once you have selected your match, the fertility clinic will perform medical and psychological testing on the Surrogate and Intended Parents to ensure everyone is physically and mentally prepared to begin.  Legal contracts are drafted and each party’s attorneys review all of the important issues you will agree to with one another for the duration of your journey.  Once contracts have been signed, the fertility clinic will perform in-vitro fertilization and transfer the Intended Parents’ embryo into the Surrogate.

If she becomes pregnant, she will be overseen by her OB or midwife throughout pregnancy and ultimately deliver at a nearby hospital.  If possible, the Intended Parents will plan to travel to where the Surrogate lives prior to delivery so that they can be there to witness the birth of their child.  Once born, the hospital staff will submit all the necessary paperwork to Vital Records so that the Intended Parents’ names will go directly on the birth certificate.

Family Makers works with Intended Parents throughout the world, but only works with Surrogates in the U.S. from surrogacy friendly states.  The State of Georgia, where Family Makers is headquartered, is one of more than 40 states in the United States where surrogacy is legal and contracts are enforceable.  Georgia is a fantastic state for surrogacy as it permits both traditional surrogacy and gestational surrogacy, with no restrictions for Intended Parents based on sexual orientation or marital status.

Georgia courts grant Pre-Birth Orders, which is a legally binding document that assigns parentage of the baby before it is even born.  Among other things, a Pre-Birth Order affirms how the baby was conceived, who the legal parents are, and instructs Vital Records that the Intended Parents are to be named on the baby’s birth certificate.  There is never a question of who the baby belongs to.

A common phrase people will see when researching surrogacy is “surrogacy friendly insurance.”  The term seems to imply that there may be insurance policies available that will pay for anything and everything related to surrogacy.  Unfortunately, that is not the case.  When we discuss policies that “cover surrogacy,” what we mean is that the insurance policy covers pregnancy claims just like any other pregnancy.

The insurer does not care how the baby was conceived, and will therefore cover any claims related to prenatal care and delivery.  Because the Surrogate does not have an infertility diagnosis, any medical screening and IVF costs pertaining to her care under a fertility specialist are not typically covered by any insurance policy.  Each year, more and more insurance carriers have started excluding pregnancy as a covered benefit when the person is serving as a Surrogate.  In 2014, approximately 80% of policies nationwide covered maternity claims for Surrogates.

In 2019, approximately 60% of Surrogates with Family Makers have insurance policies that cover it.  Because of this alarming trend, Family Makers has partnered with a global insurance carrier that offers health insurance that specifically covers pregnancy as a Surrogate.  This policy can be purchased throughout the year, allowing Intended Parents to begin their journey any time of the year, rather than waiting for Open Enrollment each November to purchase one.

Surrogacy attracts a lot of attention these days due to the rapid increase of Intended Parents worldwide using Surrogates, and the varying practices in each country where it is allowed.  In some countries, surrogacy is used as a way to exploit underprivileged women who will endure pregnancy for very little pay to help their families.

While there are not yet any federal laws that regulate surrogacy in the United States, professional organizations such as the Americian Society for Reproductive Medicine (ASRM) and the Society for Ethics in Surrogacy and Egg Donation (SEEDS) sets the standards many agencies like Family Makers follows.   Standards outlined and emphasized from both organizations include, eliminating coercion by either party involved, involvement by mental health professionals, oversight by qualified attorneys, and complete disclosure to all parties of the risks and responsibilities of the process.

There are significant differences between adoption and surrogacy, many of which are misunderstood by the general public and by those looking to grow their family.  In adoption, there are no legally binding contracts to say who the parents of the baby will be.  The birth mother can change her mind after the baby is born because it is her legal right to do so.  In gestational surrogacy, everyone understands prior to conception that the surrogate mother will have no legal rights to the baby.

A legally binding contract signed prior to conception through IVF and Pre-Birth Order during pregnancy ensures that there is no question as to who the baby’s parents will be upon birth.  Adoption involves a lot of uncertainty, and so many parents who are looking for more control over the process and a certainty of bringing home a baby find the surrogacy process to be more comforting.

Being involved in prenatal care, forming a long-term relationship with their Surrogate throughout the pregnancy, and knowing their baby’s genetic history are also other reasons people choose surrogacy instead of adoption.  Surrogacy is not guaranteed though.  There is a small chance that the Surrogate does not become pregnant after several IVF attempts, so the significantly higher costs of surrogacy compared to adoption may deter many from pursuing it.

Family Makers is proud to share many amazing success stories for the families and Surrogates who have worked with us!  One of the first questions Intended Parents ask is us what our success rate is for bringing home a baby.  Because we work with a variety of clinics with a variety of success rates, we cannot take credit if a journey is successful.  What we can do is ensure that the Surrogates we work with have the highest qualifications and criteria for helping families who depend on them.

We are proud to say that 80% of our Surrogates get pregnant and have a live birth from their first transfer attempt.  20% of the women we work with are experienced Surrogates, while the remaining are doing it for the first time.  We have not experienced a difference in success rates between those who have had previous journeys and those who are first-time Surrogates.  Check out testimonials from those who have worked with us throughout our website, on our Google business page, and on Facebook!

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