When the news broke late last April that Sarah Jessica Parker and Matthew Broderick were expecting twins with the help of a surrogate mom, a renewed interest in this family-building practice burgeoned. It suddenly seemed a more viable option for women unable to conceive or carry a pregnancy to term—situations familiar to many women in the workforce who have delayed childbearing until their careers were well established. But beyond coming to terms with surrogacy’s emotional price (as well as the social discomfort that still surrounds it), you need to understand its legal aspects—which are surprisingly varied from state to state.
Entering into surrogacy, which means making a contract with a woman who agrees to become pregnant and deliver a child for you, is not a choice you can make on a whim, says Mindy Berkson, a consultant at Lotus Blossom Consulting in Chicago, which helps guide people struggling with infertility. “The option is explored when medical indications prevent a woman from carrying a pregnancy to term,” she says. Women who’ve had multiple miscarriages, are experiencing secondary infertility, have a damaged uterus or none at all or have other conditions that prevent giving birth may be candidates for surrogacy. Alternative families, such as lesbian couples, may also choose this route so that one partner can be the egg donor and the other can carry the baby.
There are two types of surrogacy, and the distinction is legally important: In gestational surrogacy, the surrogate is not biologically related to the fetus she’s carrying. The embryo is created with the intended mother’s egg or a donor egg plus the intended father’s sperm or donor sperm and then implanted. In traditional surrogacy, the surrogate is the egg donor and is inseminated with either the intended father’s sperm or donor sperm. Many state laws make it difficult to use implantation, says Berkson, so for many women gestational surrogacy may not be an option.
Is the baby legally yours?
Another issue: Most states allow the intended parents to obtain a prebirth order so that their names can go directly on the birth certificate, says Berkson. But in some states, such as Alabama, the birth certificate has to be amended after the child is born, and the parents must go through a formal adoption. Reproductive rights lawyer Elizabeth Swire Falker, who writes the Stork Lawyer Blog (storklawyer.com), says the state-to-state variation on surrogacy stems largely from the well-known 1987 Mary Beth Whitehead case. In 1985, Whitehead agreed under contract to be artificially inseminated with William Stern’s sperm and to carry a child, using her own egg, for Stern and his wife, Elizabeth. Whitehead’s compensation would be $10,000. But once the child was born, she decided she wanted to parent the baby herself. The New Jersey State Superior Court ruled to give the baby to the Sterns in the best interest of the child. The following year, the Supreme Court of New Jersey affirmed the trial court’s analysis but invalidated compensated surrogacy contracts. Ultimately, Whitehead received visitation rights.
Paid surrogacy is also illegal in other states, including New York and Washington, which may explain why New Yorkers Parker and Broderick chose a surrogate who was in Ohio. The law is applied by the state where the surrogate gives birth, and Ohio has no specific legislation on surrogacy. “Some states, such as Illinois, California and Florida, are ahead of others in understanding the technology and relationships between the people involved. Those states have legislation that isn’t fearful about what happened with Mary Beth Whitehead,” says Falker. “There’s a need for a more universal, streamlined process among states.” Though state laws vary and can be complicated, there are many possibilities for surrogacy on a case-by-case basis, particularly if you’re open to a surrogate outside your home state. (To learn about laws in your state, log on to the American Surrogacy Center at surrogacy.com/legals/states.html. And visit the Society for Assisted Reproductive Technology’s website at sart.com to obtain a list of approved fertility clinics and/or egg donation and surrogacy agencies.)
The right partners
When choosing a surrogate, you want to find a like-minded candidate. With costs ranging from about $ 5,000 to $55,000, including compensation for the surrogate, health insurance, lawyer fees and more, “you want someone who’s willing to work with you throughout the pregnancy,” says Berkson. You should find out if the surrogate has insurance to cover pregnancy and delivery costs. There are policies you can purchase to help mitigate financial risk factors such as medical complications. Also, advises Berkson, “it’s important to put together a team of professionals to assist you, including a fertility consultant, a physician and an attorney from the state where your surrogate is going to have the baby.” And you’ll need a contract that includes details on monetary compensation, all parties’ expectations, how many embryos should be transferred, what happens if the surrogate is placed on medical bed rest and more. “The contract protects both parties—the intended parents and the surrogate,” says Berkson.
Surrogacy can be complicated—personally, emotionally and legally. But once you come to terms with your feelings and the law, it can be a viable option for starting or expanding your family.