About Surrogacy

The below is intended to give you a broad overview of surrogacy.

Legal Problems of Surrogacy : The famous New Jersey case of Baby M made the subject of surrogacy a controversial legal and political issue. The two basic problems surrogacy has encountered since Baby M are the payment to the surrogate for her services and the issue of whether the surrogate should have a certain amount of time after the birth of her child to change her mind, that is, to renege on the contract.

Fee to Surrogate : The objection to the fee to be paid to the surrogate comes from state adoption laws whic prohibit selling babies! Generally, courts and legislatures do not take issue with surrogacy as long as no fee is paid to the surrogate.

Need for a Contract : It is essential to have a contract to ensure all parties have a solid understanding of one another's rights, obligations and liabilities.  This is true even if the surrogate, donor and/or partner are good friends or family members. 

Right of Surrogate to Change Her Mind : Some states provide the birth mother with a certain period of time (usually a few days) in which to change her mind.

The resolution of the famous Baby M case was typical of the resolution of most surrogacy cases, that is, the courts have not enforced the surrogacy contract, but instead, if the birth mother changes her mind and wants to keep custody of the child, the court will decide the case on the basis of what is in the best interest of the child. It was on that basis that the court, in Baby M , gave custody of the child to the intended parents. There was another, more recent case, Johnson v. Calvert , in California, in which the genetic material of the intended parents was used. The surrogate was not genetically related to the child. The sperm of the intended father and the eggs of the intended mother produced the child. The court placed emphasis on the fact that the child was not related to the surrogate mother in awarding the child to the genetic parents.

The short of it is that there are no legal guarantees, but if nothing else, the contract should assure those involved that they are not participating in any illegal act and the contract is probably enforceable.

Services of Gitlin, Busche & Stetler: The services provided by this firm in surrogacy arrangements include: meetings with the intended parents; meetings with the surrogate; drafting of the surrogacy contract; coordinating between you and the surrogate mother for medical and psychological exams and the insemination or IVF; drafting and arguing a motion for declaratory judgment (described below); drafting pleadings, orders, etc. regarding the adoption proceedings and court appearances; coordination with the hospital for transfer of the baby and attending to the transfer of the baby; necessary correspondence, conference, telephone communications, etc.

Insemination and In vitro Fertilization : Medically there are two types of surrogacy procedures: artificial insemination of the surrogate, or in vitro fertilization. The procedure which is used depends on the nature of the infertility problem.

In vitro fertilization (test tube babies) is a new medical technique. The first test tube baby was born in 1978. IVF with a surrogate can be creatively performed to meet any infertility problem.

A. The intended mother can produce good eggs and the intended father has good sperm. The eggs can be removed from the intended mother and fertilized with the sperm of the intended father in a petri dish, and the fertilized ovum are implanted in the surrogate. The surrogate is thus not genetically related to the child and the child is 100% the genetic child of the intended parents.

B. The intended mother cannot produce good eggs. The intended father has good sperm. In such situations the surrogate mother is artificially inseminated with the sperm of the intended father.

C. The intended father does not have good sperm and the intended mother cannot produce good eggs. The surrogate can be inseminated with the sperm of a third party donor.

As can be seen from the above, other infertility problems can also be addressed by using invitro fertilization techniques.

Laws : In a gestational surrogacy the genetic material of at least one of the intended parents must be used.  In traditional surrogacy the egg of the surrogate is artificially inseminated with the sperm of the intended father.  For traditional surrogacy, since there are no laws controlling it, we are sailing on uncharted waters.

Having the Contract Declared Valid : After the surrogate mother (and her husband if she is married) have consulted with their lawyer and the agreement is signed by the parties involved, the agreement, as drafted, is still not binding. The agreement will provide that it is not a viable contract, despite the signatures, until a court, in declaratory judgment proceedings, approves the contract. The reason for this is that paying money in consideration of receiving a child is illegal. In the declaratory judgment procedure the court must determine that any intended payments to the surrogate are for her services in becoming inseminated, carrying the child and delivering the child -- and not payment for the actual child.

After entry of a declaratory judgment approving the contract, insemination, or IVF, starts.

The Adoption : As soon as the child is born a petition for adoption should be filed. The consent of the surrogate mother (and her husband if she is married) may be taken after the time period allowed for changing her mind. If all goes well, the intended parents will take the infant home with them as soon as it is discharged by the hospital.

The intended parents should immediately begin the process of adopting their child.