ABA Family Legal Guide

Health-Care Law

Specific Issues in Health Care

Assisted Reproductive Technologies

What is surrogacy?

In traditional surrogacy, a woman (the surrogate) undergoes intrauterine insemination with sperm from the man who wants to be the legal father. The baby has genetic material from the father and the surrogate. Once the baby is born, the father's wife may have to adopt it through stepparent adoption in states that don't have laws setting forth the rights of the intended parents. Because the surrogate has both a genetic and a gestational connection to the baby, like a traditional birth mother, her parental rights are protected under law.

In a gestational carrier surrogacy, an embryo is transferred to the woman who agrees to gestate the baby, the gestational carrier. The baby has no genetic material from the carrier. Here is where it gets confusing: The gametes can come from either of the intended parents (or both), or from an egg donor or a sperm donor, or both. It is important to create parenting presumptions in law so that the intended parents are the legal parents. Courts consistently have held that in gestational carrier arrangements the intended parents are the legal parents.