A surrogate mother is a woman who carries and delivers a baby on behalf of a couple. That makes surrogacy a multifaceted arrangement with a number of medical and legal implications, both for the surrogate mother and the parents. And those implications don’t even include the tricky task of finding a surrogate mother to carry the baby.

“The surrogate can be a person that the couple knows and they recruited themselves, like a sister, or somebody from the family, or a childhood friend,” explains Elena Trukhacheva, MD, MSCI, who is the medical director of Reproductive Medicine Institute in Chicago. “Most of the time, a surrogate is recruited by the surrogacy agency. And the couple uses the surrogacy agency kind of as a middleman, to navigate the process and protect them, to some extent.”

That’s because surrogacy can be a complex process. Nothing is a sure thing, and surrogate mothers are generally screened for fitness to help secure the best outcomes possible. “From a medical perspective, surrogates have to be healthy and they cannot have any medical conditions that will make them more likely to have complications during the pregnancy. That’s usually at the discretion of a physician,” says Trukhacheva. The surrogate usually cannot have more than one miscarriage in their history, either – but they do need at least one full-term pregnancy. “When someone agrees to be a surrogate for somebody, they need to understand what they consent to. If you’ve never been pregnant, you don’t know what it entails, or what kind of commitment it is.” A surrogacy agency screens for these criteria, simplifying the process for the intended parents.

Finding a Surrogate Mother

• Surrogacy is complex: there are legal and medical considerations that should probably preclude finding someone on Craigslist.
• Surrogates meet standards: there are standards of health, age, and experience that potential surrogates need to meet.
• Make a contract: a thorough contract can help both parties avoid disputes by anticipating potential problems. Both parties should have lawyers.
• Surrogacy laws vary: some states don’t have laws that recognize surrogacy contracts – in the case of disputes, things can get tricky.
• Surrogacy is expensive: the price varies, but $100,000 isn’t out of the question, once everybody is paid.

A surrogacy agency can also help navigate the legal status of intended parents’ rights, which can be disputed. A direct surrogate is legally the genetic mother, retains maternal rights, and can choose to keep the baby. Indirect surrogacy involves an embryo created from the intended parents’ gametes or those of their choice. The baby is not genetically linked to the person carrying the pregnancy and delivering the baby. Indirect surrogacy is much more widely used than direct surrogacy.

There really is no central law regarding surrogacy – just a patchwork of state laws. Some state laws are extensive, covering the question of parental rights in a wide variety of situations. Some states have no laws for surrogacy, meaning more potential for disputes. And the surrogate can easily live in a different jurisdiction than the intended parents, adding another facet.

“Surrogates only need to come to the clinic twice, so a lot of surrogates can live out of state,” says Trukhacheva. “They deliver where they live, and the law in the state where they deliver is what applies.”

Having a well-written – and comprehensive – contract helps remove some of that uncertainty. “Whether the surrogate is recruited through an agency, or recruited directly by the intended parents, the couple and the surrogate should have legal contracts that specify the responsibilities of the parties in multiple scenarios,” explains Trukhacheva. “Usually the contract specifies what will be the financial compensation, what will happen if the surrogate has to go on bed rest, what will happen if the surrogate has medical complications, and so on. So the intended parents have a lawyer, and the surrogate has a lawyer, and the contracts are written to specify the relationship between the two parties, so down the road there are less questions and less potential for disputes.”

Surrogate agencies can be expensive, no doubt. A rough estimate for a surrogate pregnancy, after the doctors, the lawyers and the surrogate mother are all paid, can be $100,000. That will vary from state to state and region to region. A family member or friend as surrogate may lower the cost, perhaps significantly, but there is something to be said about using an agency that has experience. Sometimes, such as with the Reproductive Medicine Institute, the clinic can recommend surrogacy agencies for patients. It’s an emotional time for the intended parents – why have any uncertainty clouding the occasion?

“The potential complications are more likely to happen from poor planning – you do not have a legal contract, you did not address what would happen in a specific situation, you did not discuss how many embryos the surrogate will carry, you did not specify if the surrogate has to have genetic testing for the baby, and so on,” warns Trukhacheva. “That’s why it’s important to have legal support from an agency.”

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This article was originally published on Oct. 12, 2018

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