A surrogate is a woman who carries a baby for another person or couple. There are several different types of surrogates, and each state has different laws regarding the legality of surrogacy contracts. Surrogacy assists infertile couples in having a child and is an alternative to adoption.
Traditional surrogacy refers to the process where a woman uses her own eggs and is artificially inseminated with another man's sperm (not her husband or partner). The surrogate carries and delivers the baby, and then gives the baby to the intended parents. The surrogate is not considered the baby's mother. Most states find traditional surrogacy to be illegal and have laws forbidding the formation of traditional surrogacy contracts.
Gestational surrogacy refers to the process where a woman is impregnated through in vitro fertilization using another woman's eggs and another man's sperm. The surrogate carries and delivers the baby, and then gives the baby to the intended parents (usually the egg donor and sperm donor). Gestational surrogacy is usually favored over traditional surrogacy because the surrogate is not biologically related to the baby. Most states that have laws allowing surrogacy contracts only allow gestational surrogacy.
Infertile couples often choose surrogacy as a way to have a child that is biologically related to them. Some women have healthy eggs but are unable to carry a pregnancy to term, and surrogacy provides a means of family formation. Gay male couples often use a surrogate to carry a baby for them as an alternative to adoption. Occasionally, healthy women who do not wish to undergo a pregnancy (such as models, actresses or professional athletes) use a surrogate.
Surrogacy can be an expensive process, with costs ranging anywhere from $15,000 to $100,000 for the entire process. Most medical insurance plans do not cover surrogacy. Costs associated with surrogacy include the costs of medications for the surrogate, the intended mother and the intended father; costs paid to the surrogate for prenatal care, medications and occasionally for housing and living expenses; and costs to the fertility center or surrogacy organization for matchmaking services and other related fees. There are also legal fees for enforcing surrogacy contracts in court.
Surrogacy laws vary widely by state, with some states expressly allowing surrogacy, while others expressly forbid surrogacy. Other states are silent on the matter of surrogacy. States that allow surrogacy, such as New Hampshire, Illinois and Texas, heavily regulate the process and control who can enter into surrogacy contracts and the provisions of the surrogacy contract. Some states such as Arizona or Washington, D.C., expressly forbid surrogacy contracts and may even impose a criminal sanction on couples that attempt to use surrogacy. About half the states are silent on the issue of surrogacy and have no express laws either allowing or disallowing the process.
Couples choosing surrogacy run the risk that the surrogate will want to keep the baby once it is born. This risk is reduced when couples choose a gestational surrogate instead of a traditional surrogate, because the gestational surrogate will not be biologically related to the child. Still, many courts have ruled that a gestational surrogate is entitled to legal and physical custody a child born via surrogacy, even if the child is not biologically related to the surrogate. Because of this risk, many couples choose a surrogate who is related to them (such as a sister) or is a close friend in order to lessen the risk that the surrogate will want to keep the baby once it is born.