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What You Need To Know About Surrogacy in the US

Updated: Dec 22, 2021

Surrogacy is an important alternative family planning option for individuals and couples that may not be able to conceive conventionally, or for those that are in same-sex relationships.

Starting a family through surrogacy can be a lengthy, expensive and emotional process.

What To Expect From This Article:

• What is a gestational carrier or surrogate?

• How does surrogacy work?

• How much does surrogacy cost?

• What's the difference between traditional and gestational surrogacy?

• 7 Reasons why someone might choose a surrogate

• Should you consider an agency or a private surrogate?

• What’s the typical timeline when working with a surrogate?

• What are the legal considerations around surrogacy?

• What are the emotional challenges of surrogacy?

• Is surrogacy considered controversial?

What Is a Gestational Carrier or Surrogate?

According to the American Society for Reproductive Medicine (ASRM), a Gestational Carrier is defined as “a woman who agrees to have a couple’s fertilized egg (embryo) implanted in her uterus." The gestational carrier carries the pregnancy for the couple.

The carrier does not provide the egg and is therefore not biologically (genetically) related to the child.

The American Bar Association Model Act Governing Assisted Reproductive Technologies defines a “Gestational Surrogate as “an adult [who is] not an Intended Parent, who enters into a Surrogacy Agreement to bear a child and who is not a Gamete Provider for the Child” – i.e., who has not contributed the egg and is not genetically related to the Child.

The Economist suggests that gestational surrogacy is growing in popularity.

In the US, more than 10,000 babies were born from gestational carriers/surrogates between 2010 and 2014.

In 2018, the surrogacy industry was worth $6B globally and is expected to reach $27.8bn by 2025, according to Global Markets Insights, a market-research firm.

Gestational carriers, whether working with an agency or privately with Intended Parents, need to meet certain criteria to qualify to become a surrogate.

While it varies by state and by medical practice, surrogacy candidates must generally be within the age range of between 21 and 40 years old, pass all medical tests and screenings, as well as have carried at least one pregnancy to term without complications, but have fewer than five vaginal deliveries and two caesarean sections.

The Surrogacy Process in 5 Steps

There are a number of reasons why surrogacy may offer a means to start a family.

While having a surrogate may not be considered a traditional path to parenthood, it can be an incredible option for a variety of people in which pregnancy isn’t an option. When you are working with a surrogate the timeline varies and is impacted by a variety of factors.

Let’s review what the process entails.

1. Determine The Type Of Surrogacy:

Traditional surrogacy (also called ‘genetic surrogacy’) or gestational surrogacy are the two options to review.

Each one needs to be weighed up in terms of cost, the genetic connection to the baby, and the potential emotional, psychological, and legal issues. These are outlined in more detail below.

2. Find a Surrogate:

A surrogate can either be found privately through a trusted friend or family member or through a credible surrogacy agency.

The time spent looking at different surrogacy agencies can vary widely as everyone’s journey is different.

Once an agency is selected, the matching process to find a suitable surrogate will begin. This part of the journey can take time.

Finding a gestational carrier that meets specific criteria and expectations is extremely important, and can have a major influence on the experience and outcome.

Once a surrogate is selected, clinic screenings and medical screenings will take place over the next few weeks.

3. Have a Lawyer Create a Contract:

As soon as the fertility clinic has cleared the surrogate’s medical records and screening results, both parties can start to review the legal contracts that have been drawn up by a surrogate lawyer.

A trained attorney specializing in assisted reproductive law will need to draft up a legal contract that all parties involved will sign.

According to Alexis L. Cirel, a Partner in the Matrimonial and Family Law Group at Warshaw Burstein LLP, the legal process of contracts being amended and signed can take about 2 to 3 weeks. The surrogate as well as intended parents will need to have separate legal counsel.

4. For Gestational Surrogates, Embryo Transfer:

For gestational surrogates, as soon as contracts have been signed and the clinics have been notified, the surrogate can start a medication cycle to prepare for the embryo transfer.

If implantation occurs successfully, the surrogate will carry the pregnancy with the goal of a healthy baby being born.

5. For Traditional Surrogates, Insemination Occurs:

The surrogate is artificially inseminated with the sperm of the intended father or a donor. The goal is for the surrogate’s own egg to be fertilized and to carry the pregnancy to term.

For the following 9 months, the surrogate will carry the baby.

It is recommended that the intended parents spend time with the surrogate, allowing them to learn more about the pregnancy and feel more bonded to the pregnancy process.

How Much Does Surrogacy Cost?

The costs associated with surrogacy can vary based on the type of surrogacy (e.g. traditional or gestational) as well as where the surrogate is based.

There can also be additional costs if a donor egg or sperm are used.

In the US, a gestational carrier can cost anything from $90,000 to $200,000.

This amount includes the compensation, health care costs, legal fees as well as other costs that may be involved.

Additionally, a surrogate may require a monthly allowance, financial coverage for any lost wages, in addition to health insurance coverage.

How Do Those Costs Break Down?

In a typical surrogacy journey in the US, compensation for the surrogate will comprise ⅓ of the cost, agency fees and legal fees comprise another third.

The rest of your amount is usually spent on clinic procedures and related expenses.

According to the West Coast Surrogacy Agency, the total amount can also increase if the pregnancy results in twins, triplets or if a caesarean delivery is necessary.

Because of the cost, many people opt to go abroad as overseas surrogacy arrangements tend to be more affordable.

While this can be a really attractive financial option, it’s best to work with reputable agencies and be fully aware of the local laws, quality standards and regulations that may impact the experience and the success of the journey.

“Commercial “compensated” surrogacy is illegal in all first world nations, except the United States. The US provides the most ethical, medically advanced, and legally conducive climate for surrogacy. Surrogacy pitfalls can cost you time, money and potentially so much more. This is not an area you want to start compromising on the quality of care because it is going to save you money. I would always recommend finding a way to afford the process in the US. There are grants and loans that can help intended parents find a way.“ - Lisa Chiya, President of the Genesis Group

What's the Difference Between Traditional and Gestational Surrogacy?

When it comes to surrogacy, there are two different types, traditional and gestational surrogates.

Traditional Or Gestational Surrogacy

Traditional or genetic surrogacy implies that there is a genetic link between the child and the surrogate – i.e., the surrogate’s own eggs are contributed to creating the embryo with either donor sperm or sperm from the Intended Father.

While traditional surrogacy may be more appealing at first due to the lower costs associated with it, there can often be more legal and emotional risks.

Gestational Surrogacy

In gestational surrogacy, there is no genetic link between the baby and the surrogate.

In this scenario, the child is genetically connected to the intended parent or parents and/or egg/sperm donor(s).

In the United States, gestational surrogacy is generally considered less complex from a legal perspective and has become more common than traditional surrogacy.

According to Rebecca Buffum Taylor and Traci C. Johnson, MD, “about 750 babies are born each year using gestational surrogacy”.

Actress Nicole Kidman who had her fourth child through surrogacy said, “No words can adequately convey the incredible gratitude that we feel for everyone who was so supportive throughout this process, in particular our gestational carrier."

Actress Nicole Kidman who had her fourth child through surrogacy said, “No words can adequately convey the incredible gratitude that we feel for everyone who was so supportive throughout this process, in particular our gestational carrier."

7 Reasons Why Someone Might Pursue Surrogacy

There are many reasons that people pursue surrogacy.

It should be noted that at ELANZA, we celebrate all paths to parenthood and believe that no one should ever be shamed for their personal choices.

1. Absence of the Uterus

Roughly one in twelve thousand women may not have a uterus as a result of a genetic malformation called Müllerian agenesis.

In some cases such as certain forms of cancer, a woman would have to have her uterus removed. Without a uterus, it’s impossible for a person to carry a child.

2. Uterine Issues or Abnormalities

Both the position and the shape of the uterus may affect fertility and may have an impact on a person’s ability to carry a baby to full term.

In fact, it’s thought that about 8% of women with fertility issues have a uterine abnormality, which may be even higher for people with a history of miscarriage.

Based on the type of abnormality that may be present, surgery may be an option before requiring a surrogate.

3. Prior Pregnancy Issues

If a woman experiences severe challenges or complications during a previous pregnancy, a surrogate provides a safer option for both the intended parent and the child.

Complications such as severe preeclampsia and cervical incompetence can sometimes be managed throughout the pregnancy but doctors sometimes recommend surrogacy if there are significant issues with safety.

In addition to physical challenges during pregnancy and childbirth, mental health issues such as severe postpartum depression, which can lead to postpartum psychosis, can be equally harmful to both the health of the mother and the care of the child.

4. Hysterectomy As a Result of Cancer

If a woman has had cancers such as cervical cancer in the past, they may have needed to receive a hysterectomy. This would preclude a woman from carrying the child herself.

5. Excessive maternal risk

There are a few notable health conditions that make it too dangerous for a woman to carry a baby to term.

In these circumstances, a surrogate is often the best way to avoid significant health risks.

This includes some heart defects or heart diseases, kidney disease, severe diabetes, as well as other conditions like placenta accreta, which is known to carry a risk of haemorrhage.

Kim Kardashian dealt with both preeclampsia and placenta accreta in her previous pregnancies and was also at risk for gestational diabetes.

After having extensive surgery that left her with a hole in her uterus she decided to speak out about her decision to use a surrogate.

6. Same-Sex Male Couples

For same-sex male couples, surrogacy can offer a way to start a family.

Gestational surrogacy is widely popular, particularly among members of the LGBTQ+ community as it allows LGBTQ+ individuals and couples to have biological children.

“True equality doesn’t stop at marriage. It recognizes the barriers L.G.B.T.s face in forming families and proposes solutions to overcome these obstacles.” - Ron Poole-Dayan, the founder and executive director of Men Having Babies.

As a gay, H.I.V.-positive man, Brian Rosenberg, 54, and his husband welcomed twins, biologically related to Rosenberg, in 2010. “It’s still hard to believe,” Rosenberg said. “I thought this was a door that was shut to me.” (NY Times)

Not only does surrogacy allow same-sex couples to have children with biological ties to them, but it allows male, unpartnered individuals to start a family.

Many celebrities have recently come forward and opened up about their struggles with infertility as well as their path to parenthood.

Many celebrities have recently come forward and opened up about their struggles with infertility as well as their path to parenthood. Elton John & David Furnish have been very open about their path to parenthood.

The couple first welcomed a baby boy via surrogacy in 2010 and later in 2013 welcomed another baby boy.

7. Medications

Some women need to take medication, which is not safe during pregnancy. Using a surrogate allows them to stay on the medication they need without causing harm to the baby.

Should You Consider an Agency or Private Match

In the United States, there is no legal requirement to make use of a surrogacy agency but surrogacy journeys are complex and it can be useful to have the support of an agency at every stage.

Experts recommend building a surrogacy “team” that will help guide and coach people along this often challenging journey.

A surrogacy “team” is best comprised of a medical specialist such as a reproductive endocrinologist, a lawyer who specializes in surrogacy law, a fertility coach who can offer structured support throughout the potentially long and emotional journey, and lastly, a fertility insurance expert.

A good, reputable surrogacy agency will ensure that all surrogates undergo extensive health, criminal, financial and psychological screenings before they are matched up with intended parents.

An agency works day in and day out to move your journey forward. The agency facilitates the process between the doctor, psychologist, lawyers, and insurance experts. An agency also tends to smooth over any bumps throughout the journey. Picking a good agency is crucial. A good place to start when looking for an agency is - Lisa Chiya, President of the Genesis Group

In lieu of a surrogacy agency, it’s good to be fully aware of the complexity of the process and to be prepared for potential challenges that may occur along the way.

If a private surrogacy is not handled correctly, it can have a major impact on the outcome of the surrogacy journey, either legally, medically or emotionally.

That being said, private surrogacy is considered to be less expensive as there are no agency fees.

When individuals or couples opt for a private surrogacy, it’s often because a trusted friend or family member has offered to be the surrogate thus eliminating the need for an agency.

In either case, it’s important to focus on the emotional health of both the intended parents and the surrogate.

Fertility coaching has been shown to be a crucial aspect of any treatment cycle that can help manage the range of emotions that can occur during any surrogacy journey.

What are the Legal Considerations Around Surrogacy?

In the United States, surrogacy laws continue to evolve and vary by state. Some states have statutes regulating surrogacy arrangements and in some states, the laws affecting surrogacy have evolved through case law.

In other states, the books are silent as to the practice of surrogacy and in still others surrogacy contracts are not recognized at all and/or are even penalized.

This can make the legal surrogacy process complicated for intended parents, especially if donor eggs and/or sperm are also used.

Despite the fact that it may be the only option for many couples to have a child from their own gametes, surrogacy is prohibited in many European countries.

In other countries, only compensated surrogacy is prohibited.

The Legal Risks of Traditional Surrogacy

Due to the potentially complicated nature of traditional surrogacy from both a legal and emotional perspective, it’s important to understand the laws in your state before starting the journey.

What are the Health Risks and Emotional Challenges Associated With Surrogacy?

As with any pregnancy, there are always risks.

Pregnancy, the birth as well as the postpartum period may include various complications for the surrogate such as preeclampsia and eclampsia, urinary tract infections, stress incontinence, and gestational diabetes and rare complications such as amniotic fluid embolism and the possibility of postpartum haemorrhage, but these risks are associated with pregnancy in general and not specific to surrogacy.

Apart from physical risk, surrogacy may implicate some psychological and emotional challenges but with the support of mental health professionals throughout the journey and psychological clearance requirements at the outset of the process, most report that the experience is a rewarding and positive one.

Surrogates typically share a personal relationship that will last throughout the pregnancy and often beyond.

ASRM guidelines recommend that physicians strongly suggest counseling as well as psychological education by a licensed mental health professional to both intended parents as well as the surrogate.

The ASRM's Practical Committee Guidelines for utilizing gestational carriers states: The decision to use a gestational carrier is complex, and patients and their partners (if applicable) may benefit from psychosocial education to aid in this decision.

The physician should strongly recommend psychosocial education and counseling by a qualified mental health professional to all intended parents.

The assessment should include a clinical interview and, where appropriate, psychological testing.

Psychological test data should be handled in accordance with American Psychological Association Ethical Standards.

The physician should require psychological consultation for couples in whom factors appear to warrant further evaluation.

The potential impact of the relationship between the intended parent and carrier should be explored, as should any plans that may exist relating to disclosure and future contact.

What Are The Emotional Challenges Of Surrogacy?

If surrogacy is a path that’s chosen after an infertility diagnosis or reproductive health issue, it has been known to pose complex psychological aspects that often require a multidisciplinary approach.

The nature of surrogacy more often than not engages a variety of different parties, which can sometimes be emotionally taxing on the surrogate as well as the intended parents.

There are various aspects of a surrogacy journey to consider.

Unlike donor egg programs where the intended parent does not share a relationship with the donor, a gestational surrogate typically shares a personal relationship that will last throughout the pregnancy and often beyond.

Counseling Before Any Surrogacy Journey

Experts strongly recommended that all parties involved in the surrogacy process undergo counseling.

It is important that couples exploring, considering or in the process of surrogacy not only trust each other but feel confident and comfortable in their decisions.

There are various factors that should be discussed with both the surrogate and intended parents. ASRM's Practical Committee Guidelines for utilizing gestational carriers recommends the following psychosocial consultation for intended parents:

  • A clinical interview and psychological assessment including the intended parent(s)' history of infertility and methods of coping

  • Psychological evaluation of each intended parent is strongly recommended as a means to alert the team to significant psychological issues that could compromise successful collaboration with the gestational carrier

  • Informing intended parent(s) of potential psychological issues and risks associated with the gestational carrier process

  • Discussion of the medical protocol, scheduling demands, risks of cancelled cycles or unsuccessful cycles, number of embryos transferred, multiple pregnancy, multifetal pregnancy reduction, prenatal diagnostic testing, and elective termination

  • Requirement of intended parent(s)' agreement with the gestational carrier regarding all medical issues

The role/function of qualified mental health professional can include:

  • Management during pregnancy of expectations and relationship with the gestational carrier and her family

  • Meeting the emotional and physical needs of the gestational carrier and her family

  • Understanding the gestational carrier's right to make choices for her body over the rights of the intended parents

  • Rights of the gestational carrier to refuse or to accept medical interventions or testing

  • Number of embryos to be transferred and number of cycles planned to be determined by the gestational carrier and physician

  • Multiple pregnancy and associated risks

  • Multifetal pregnancy reduction and discussion of psychological risks and concerns

  • Possibility of abortion in the event of an abnormal fetus

  • Gestational carrier's behavior during pregnancy and methods for resolving conflicts (e.g., eating habits, prescription drugs, alcohol)

  • Disclosure to offspring

  • Disclosure to family members and friends

  • Expectations of relationship between gestational carrier, intended parent(s), and children after birth

  • Need for gestational carrier and her children to interact with baby after birth

  • Disposition of extra embryos

  • Need for separate legal consultation and a written contract

  • Potential guilt reaction of gestational carrier associated with failed attempts or problem that may arise

  • Matching of gestational carrier and intended parent(s)

  • Relationship issues, expectations, and impact of failed cycle

The ASRM also recommends counseling for the gestational carrier, which can include support around:

  • Informing the potential gestational carrier and her partner regarding the potential psychological issues and risks associated with the process

  • Discussion of the medical protocol, including scheduling demands, risks of cancelled cycle and unsuccessful cycle, multiple pregnancy, multifetal pregnancy reduction, prenatal diagnostic testing, and elective termination

  • Discussion of the requirement of intended parent(s)' agreement with the gestational carrier regarding all medical issues

  • Definition of role/function of the qualified mental health professional

  • Management of the relationship between the intended parent(s) and the gestational carrier; past, present, and future

  • Coping appropriately with the pregnancy

  • Risks of attachment to the child and risk to the gestational carrier's children

  • Impact on gestational carrier's marriage or partnership

  • Impact on gestational carrier's employment

  • The balance between the gestational carrier's right to privacy and the intended parent(s)' right to information

If surrogacy is a path to parenthood that you are considering or exploring and you would like support through your journey, learn more about ELANZA fertility coaching to support your decision-making process and your journey here.


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