When they hear the word “surrogate,” many people think “What? How could a woman give away her child?”
We’re here to explain why that does not always make sense. First, we should explain that there are two kinds of surrogacy: traditional and gestational. Traditional surrogacy is when a woman carries an embryo, intended to be raised by someone other than herself, created with her own ovum and fertilized with a man’s sperm. In short words, the surrogate is the biological mother of that child but the child is raised by another person or couple. Traditional surrogacy is rarely seen these days. It is not illegal but requires an adoption by an intended parent, otherwise the traditional surrogate will be considered the mother.
Gestational surrogacy, the most common type of surrogacy today, is when a woman carries an embryo that is biologically unrelated to her. The embryo is created with the ovum of another woman and a man’s sperm. This embryo is then transferred into the uterus of the surrogate. Therefore, the surrogate is not the biological mother of the child – she is simply the carrier.
Now, why do people choose surrogacy as a means to have a child? One common reason is that the intended parents are unable to conceive a child naturally or safely. Because of their inability to conceive, these couples choose to create embryos via in vitro fertilization and transfer them into a surrogate’s uterus. In some cases, one intended parent is infertile, so his/her gametes do not have the ability to create an embryo. Couples in this situation will often seek an egg or sperm donor to help with the creation of their embryo.
Why would a woman want to be a surrogate? This question is more difficult to answer because surrogates all have different reasons for their decision. Many are motivated by a desire to help others to grow their family. Some have relatively easy pregnancies and actually enjoy the feeling of being pregnant. Reputable surrogacy agencies try to avoid candidates who are primarily motivated by the financial compensation.
So how does it all work? First, the gestational surrogate candidate undergoes a psychological and medical screening, and the intended parents undergo a medical screening to make sure that all parties are free from infectious diseases. Next, the parties retain separate counsel to represent them in drafting a surrogacy agreement. The surrogacy agreement will cover the parental rights of the parties, making it clear that the surrogate or her spouse will not be a parent; it will address what happens in potential scenarios where there could be disagreement if it’s not written ahead of time; it will address compensation and expenses of the surrogate and payment of medical expenses of the surrogate and baby; it will address the activities and restrictions of the surrogate. After the contract is signed and notarized by all parties, the gestational surrogate can begin the medical procedures.
One of the questions we hear the most is, “What if the surrogate mother changes her mind and wants to keep the baby?” When the surrogacy arrangement is properly made, there are safeguards in place and cases where a gestational surrogate tries to keep a baby she is carrying are exceedingly rare. To guarantee that the surrogate won’t try to gain parental rights, there is something called a pre-birth order, which is submitted to a local court prior to the birth, which requests that the intended parents shall be named as the child’s legal parents on his/her birth certificate. This order is presented to the judge for their signature before the child is born, and will be given to the hospital or the vital statistics office in order to prevent any confusion or legal problems about who the parents are once the surrogate gives birth to the child.
This is a brief overview of surrogacy in the State of California. If you have questions about surrogacy, our contact information is provided below.
Please note that this article is for informational purposes only, not legal advice and not intended to create an attorney-client relationship.
Tsong Law Group, A.P.C.
562-274-7807