Understanding the Legal Distinctions between Traditional and Gestational Surrogacy

Though surrogacy is an ancient practice that has been used for thousands of years to bring children into the world, it only recently started to find its legal footing in the United States. The true adjustment of surrogacy into our culture began in 1985 when Bill and Elizabeth Stern hired and paid a woman named Mary Beth Whitehead to bear their child through traditional surrogacy.

Whitehead underwent artificial insemination with her eggs and Bill Stern’s sperm. Despite the child biologically belonging partially to Whitehead, their surrogacy arrangement stated that the baby would legally belong to the Sterns after birth. However, this form of traditional surrogacy became fraught with unprecedented legal problems that led the whole country to follow the uncertain fate of “Baby M”.

Due to everything that occurred between the Sterns and Whitehead- Whitehead did not want to give up the baby, refused her payment from the Sterns, ran away to Florida with Baby M, and was ultimately granted visitation rights by the New Jersey Supreme Court- essential legal distinctions have now been established between traditional surrogacy and gestational surrogacy.

How Is Gestational Surrogacy Different?

Gestational surrogacy is far more socially and legally accepted than traditional surrogacy. It is the process of a woman carrying a baby with whom she has no genetic ties. Eggs are taken from the intended mother (or egg donor) and mixed with sperm from the intended father (or sperm donor). In vitro fertilization is then used to inseminate the surrogate’s uterus.

Gestational surrogacy has become so popular that celebrities like Kim Kardashian, Sarah Jessica Parker, Tyra Banks, Nicole Kidman, Elton John, and Neil Patrick Harris have used it to expand their families. They have been able to rely on gestational surrogacy to have children because many states have formally legalized gestational surrogacy and established strict legal guidelines to avoid difficult instances such as with “Baby M” in 1985.

The Core Legal Distinctions Between Traditional and Gestational Surrogacy

Since surrogacy laws are left to each individual state to determine, the exact legal requirements surrounding traditional and gestational surrogacy will vary based on your location. Fortunately, the majority of states in America now favor legalized gestational surrogacy and have crafted laws around it. Approximately 99 percent of surrogacies are gestational, and surrogacy agencies typically only offer gestational services since traditional surrogacies have the potential for serious legal complications.

Most significantly, since the surrogate in a traditional surrogacy is also the baby’s biological mother, her parental rights need to be legally terminated after the baby is born. If the biological surrogate mother tries to fight this action for any reason, the situation gets messy. In many states, the non-biological parent of the child is also required to complete a stepparent adoption to secure legally recognized parental rights. The emotional risks and legal implications of traditional surrogacy make it the rarely used choice for family planning.

Gestational surrogacy, on the other hand, is becoming more widely recognized and understood by the general public. Agencies like Open Arms Surrogacy and Egg Donation specialize in guiding intended parents and surrogates through a seamless and joyful surrogacy process. Carefully written contracts are used to cover every potential “what if?” scenario. In states like Florida where surrogacy is permitted, pre-birth orders are granted to ensure that both intended parents’ names appear on their baby’s birth certificate.

Since the legalities surrounded surrogacy are undeniably complex, it is essential that hopeful parents work with a surrogacy agency like Open Arms Surrogacy and Egg Donation in order to benefit from the complete care, guidance, and industry expertise they offer. Call (941) 741-4994 to learn more about becoming a parent with Open Arms!  

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