Understanding surrogacy

Even with high-profile celebrities such as Kim and Kanye having babies via surrogates, the process of surrogacy remains mysterious and somewhat controversial. We take an in-depth look into this hot topic…

When LA couple Brian and Ben found out that they’d been matched with a surrogate who would carry their baby, it was “the happiest day of their lives”. They’d been saving their pennies for six years to be able to afford the expensive process and their dream was finally about to come true.

“We started talking about having a baby when we’d been dating for about a year,” says Ben. “But at first, we didn’t know if we should adopt or use a surrogate. We put our feelers out and one of our close friends said she’d donate her eggs to us. That’s what started the whole surrogacy ball rolling. We signed up with an agency and two months later, they called to tell us they’d found a match for us. I cried like a baby!”

Brian and Ben couldn’t have been happier with their “baby mama”, as they took to calling her. “We became very close with Maria during the pregnancy,” says Ben. “She was amazing. There are simply no words to thank her for what she did for us. The day Katherine was born was just… there are no words! And we’ve remained close with Maria ever since. She’s visited Kat a few times and we send her photos regularly.”

Maria says the experience was just as positive for her. “It was honestly one of the best things I’ve ever done,” she says. “Don’t get me wrong – it had its hard moments, like all the hormone shots and the time I fell over and bumped my belly. I was so terrified I’d hurt the baby. But seeing their faces when I handed them their daughter… I’ll never forget it. I have my own kids, so I felt fine handing Kat over. She’s Brian and Ben’s daughter, I always knew that. She looks so much like Ben!”

Types of surrogacy

There are two basic types of surrogacy: traditional and gestational. In traditional surrogacy, the surrogate mother is also the egg donor. Her egg can be fertilized via intrauterine insemination (IUI), in vitro fertilization (IVF) or home insemination using the intended father’s sperm or donor sperm. This means that the surrogate will be the child’s biological mother.

With gestational surrogacy, the embryo can be created using either the intended parents’ egg and sperm, a donor egg and the father’s sperm, the mother’s egg and donor sperm, or a donor egg and donor sperm depending on the couple’s specific circumstances. In all cases of gestational surrogacy, the surrogate mother isn’t genetically related to the child.

For many years, traditional surrogacy was the only option for couples who couldn’t conceive on their own. But with the advancement of reproductive technologies, gestational surrogacy has become the more popular option because it bypasses many of the emotional and legal complications that can occur when a surrogate mother is also the child’s biological mother.

Intended parents can also choose between altruistic surrogacy, in which the surrogate doesn’t receive any financial compensation beyond the reimbursement of pregnancy-related expenses, and commercial (or compensated) surrogacy, which involves paying a fee to the surrogate to carry their child. The type they choose may depend on the surrogacy laws in their state and whether they have a close friend or family member who’s willing to carry their baby.

Finally, they can opt for an agency surrogacy, in which all aspects of the surrogacy process are handled by a surrogacy agency, or an independent surrogacy, where they employ a surrogacy lawyer and a fertility clinic to handle the legal and medical aspects of the process but do the rest on their own.

Surrogacy laws by state

Because Brian and Ben live in the surrogacy-friendly state of California, the process was smooth for them from a legal point of view. They were even able to sign a pre-birth order that assigned them parentage when Maria was seven months pregnant. As soon as Katherine was born, the pre-birth order took effect and Brain and Ben were legally her dads.

But it isn’t as easy for all intended parents. Surrogacy laws and how they’re applied vary widely from state to state and are constantly evolving. Here’s a breakdown of the laws by state, but make sure to consult a reproductive lawyer to obtain the most up-to-date information before you start the process.

States where surrogacy is fully permitted for all parents (heterosexual and same-sex), pre-birth orders are granted and both parents are named on the birth certificate: California, Connecticut, District of Columbia, Delaware, Maine, Nevada, New Hampshire and Rhode Island.

States where surrogacy is permitted, but the granting of pre-birth orders and the naming of both parents on the birth certificate can vary by county and depending on the intended parents’ specific circumstances: Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Hawaii, Illinois, Kansas, Kentucky, Massachusetts, Maryland, Minnesota, Missouri, Montana, North Carolina, North Dakota, New Mexico, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Wisconsin and West Virginia.

States where surrogacy is practiced, but the law is unclear or results are inconsistent (it’s highly recommended to obtain legal counsel before beginning the surrogacy process in any of these states):Arizona, Iowa, Idaho, Indiana, Mississippi, Montana, Nebraska, Tennessee, Virginia and Wyoming.

States where surrogacy contracts are either highly restrictive or void and unenforceable, and compensated surrogacy may be illegal and subject to fines (if you would like to hire a surrogate residing outside your state, you should obtain a lawyer’s advice before going ahead): Louisiana, Michigan, New Jersey, New York and Washington. 

How much does surrogacy cost?

The average cost of commercial surrogacy in the U.S. ranges from $90,000 to $130,000. The base pay for surrogates is between $30,000 and $50,000, with experienced surrogates and surrogates residing in high-demand states such as California receiving more. Intended parents who enter into an altruistic surrogacy agreement and/or who use their own eggs can cut their costs significantly.

Married couple Claire and Josh admit they had to sell their house in Hartford, Connecticut, to afford their surrogate. “We kept trying to crunch the numbers and there was no other way,” says Claire. “So we sold our dream home and moved into a ground-floor apartment with access to a park. Our friends thought we were crazy, but we wanted this baby more than anything in the world. It ended up costing us about $110,000, but it was worth every penny. Our son, Elliott, is the light of our lives. I’d recommend surrogacy to anyone. You don’t need money and expensive stuff if you have a child who hugs and kisses you every day. That’s worth more than all the money in the world.”