When faced with infertility, couples are introduced to many treatment modalities, terminologies and abbreviations, especially when assisted reproductive technology (ART) is required. Some of these are confusing and not fully understood. One patient described it as “going through a maze”. One of these modalities/terminologies is Surrogacy, which is a form of third (3rd) party reproduction.

What Is Surrogacy?

An arrangement, often supported by a legal agreement, whereby a woman (the surrogate mother) agrees to become pregnant and give birth to a child for another person(s) (commissioning couple) who is or will become the parent(s) of the child.

It is one of the more controversial methods of ART, frequently denounced as exploitative with different countries/localities having different views and therefore legalization governing this very important method of procreation.

The drama surrounding surrogacy comes more from the legal and possibly ethical/social considerations than the science of the procedure.

It has therefore been at the centre of some problematic local and international arrangements as some couples travel from countries where surrogacy is banned to other jurisdictions where it is permitted.

Types Of Surrogacy

Traditional: A surrogate mother is artificially inseminated by the intended father or an anonymous donor and carries the baby to term. The child is therefore genetically linked to both the surrogate and the owner of the sperm sample.

Gestational/IVF Surrogacy: An egg is removed from the intended mother or an anonymous donor and fertilized with the sperm of the intended father or anonymous donor via IVF. The embryo is transferred to the surrogate who carries the baby to term.

The child is therefore genetically related to the owner of the eggs who could be either the intended mother or a donor and the owner of the sperm but not the surrogate.

How To Find A Surrogate

1. Yourself: Family members but be mindful of incest (ASRM)
2. Agency: In environments where surrogacy is permitted. The agencies not only help in finding the surrogate but also in arranging a contract with the surrogate.

The agencies often screen the surrogates to establish their psychological readiness and carry out medical tests to ensure the best chance of healthy pregnancy and delivery.

Who Can Be A Surrogate

1. Should not be less than 21 years of age
2. Preferably someone who has delivered one (1) healthy baby
3. Passed a psychological screening test
4. Sign a contract for risks and responsibilities in the pregnancy, prenatal care and agreeing to give up the baby after birth
5. Agrees to medical testing: History
6. Infectious diseases screening: HIV, Syphilis
7. Genetic disease screening: SCD i.e. genotype
8. Immunization: rubella
9. Submits to counselling: Topics include the issue of multiple pregnancies and the detection of congenital abnormalities in pregnancy.

Legal Aspect Of Surrogacy

Entering a surrogacy agreement involves various legal and ethical considerations. While the specifics can vary based on location and individual circumstances, here is a list of common documents and considerations that need to be addressed before entering a surrogacy agreement:

1. Surrogacy Agreement: This is the core document outlining the terms and conditions of the surrogacy arrangement. It typically covers issues such as compensation, medical procedures, parental rights, and expectations of all parties involved.
2. Medical Evaluations and Consent Forms: Surrogates and intended parents may need to sign medical consent forms for fertility treatments, embryo transfers, and prenatal care.
3. Psychological Evaluations: Both the surrogate and intended parents may undergo psychological assessments to ensure they are mentally prepared for the surrogacy journey.
4. Legal Counsel: All parties should have their independent legal representation to review and negotiate the surrogacy agreement, protect their rights, and ensure legal compliance.
5. Parental Rights Termination: If the surrogate has any existing parental rights, legal steps may be required to terminate them before or after birth.
6. Egg or Sperm Donation Agreements: If donor gametes are used, agreements with the donors may be necessary, including issues related to anonymity and parental rights.
7. Escrow Agreement: An escrow account may be set up to manage the financial aspects of the surrogacy, ensuring that funds are disbursed as agreed upon in the contract.
8. Health Insurance: Clarify and address health insurance coverage for the surrogate and the child, including whether the intended parents will provide coverage.
9. Consent to Medical Procedures: Document the surrogate’s consent to medical procedures and her agreement to follow medical advice during pregnancy.
10. Birth Plan and Hospital Agreements: Specify the birth plan and any agreements with the hospital regarding the presence of the intended parents during labour and delivery.
11. Counselling and Support: Consider including provisions for counselling and emotional support for the surrogate and intended parents throughout the surrogacy journey.
12. Confidentiality and Privacy: Address issues of confidentiality and privacy for all parties involved, especially regarding sensitive medical and personal information.
13. Dispute Resolution: Include a clause on how disputes will be resolved, whether through mediation, arbitration, or legal action.
14. Termination Clause: Detail the circumstances under which the surrogacy agreement can be terminated and the procedures to follow.
15. Post-Birth Plans: Outline plans for the care and custody of the child after birth, including the intended parents’ responsibilities.
16. Legal Parentage Order: Determine the process and timing for obtaining a legal parentage order or birth certificate reflecting the intended parents as the legal parents of the child.
17. Criminal Background Checks: Depending on local regulations, background checks may be required for all parties involved.

It’s crucial to consult with experienced legal professionals specialising in reproductive and family law to draft and review these documents to ensure that they are legally sound and protect the interests of all parties involved. Additionally, laws and requirements can change, so staying informed about the legal landscape in your jurisdiction is essential.

History Of Surrogacy

Though as old as biblical times: Abraham and Sarah.

In 1976 the first legal surrogacy agreement was brokered by lawyer Noel Keane. It was a traditional surrogacy with no compensation.

In 1980 after the birth of Louise Brown in 1978 the first compensated surrogacy agreement was organized between a traditional surrogate Elizabeth Kane (pseudonym). She later wrote about her experiences and regrets in a book titled “Birth Mother”.

One of the most celebrated surrogacy cases that probably highlighted the shortcomings of the traditional surrogacy arrangement was the famous case of Baby M.

A couple Bill and Betty Stern hired Mary Betty Whitehead as a traditional surrogate in 1984. Ms. Whitehead’s eggs were used and when the baby was born, she refused to hand over the baby and took custody of the baby with a resultant protracted custody battle.

On February 3rd 1988 the Supreme Court of New Jersey ruled that the surrogacy agreement between the Sterns and Ms. Whitehead was illegal and therefore restored Ms. Whitehead’s parental rights. Custody was granted to Mr. Bill Stern with Ms. Whitehead receiving visitation rights.

In 1985 while the Baby M case was going on, the first gestational surrogacy was completed, paving the way for future gestational surrogacy to be the norm. Avoiding all the legal and ethical issues surrounding traditional surrogacy.

2014: An internationally publicized incident, a woman was hired as a surrogate mother by an Australian couple, she had delivered a set of twins in 2013. Seven months into the pregnancy a scan had shown she was carrying a set of twins with one of them having Down’s syndrome. The intending parents had wanted a procedure for the affected baby to be aborted, which the surrogate mother rejected. The couple left with a healthy baby and abandoned the baby with Down’s syndrome.

The case came into the limelight when the surrogate mother went public through an Australian Charity to raise money for the sick baby who was known as Baby Gammy. Not only did she have Down’s Syndrome, but she also had some congenital abnormalities in the heart (usually associated with Down’s Syndrome)

The backlash made Thailand ban surrogate babies from leaving the country with their parents and paid surrogacy was also banned for foreigners.

Baby Gammy was later granted Australian Citizenship.

2018: The Iowa Supreme Court ruled that a gestational contract is legally enforceable and awarded custody of baby H to the biological father (intending couple) against a surrogate mother and her husband who were not genetically related to the child.

Baby H was a twin born on August 31, 2016, 13 weeks premature, one of the twins died in intensive care.

Various celebrities have also used surrogacy to have their own children, Kim Kardashian and Kanye West are one of these. Their last child was born on 9th May 2019. The child before that was also through Surrogacy as Kim had some very serious complications in earlier deliveries.

In 2023, merely five months after the birth of their third child, Teigen and John Legend happily announced the expansion of their family to six members with the arrival of their fourth child, Wren Alexander Stephens. The 12-time Grammy awards winner took to Instagram on June 28 to confirm the heartwarming news, revealing that their son had been born via surrogacy on June 19, 2023.