Traditional Surrogacy vs. Gestational Surrogacy Introduction:
Surrogacy is defined as “the process of carrying and delivering a child for another person.” Black's Law Dictionary
1582 (9th ed.2009). Surrogacy is then divided into two main categories: traditional surrogacy and gestational surrogacy. Traditional surrogacy vs gestational surrogacy is dependent on the source of the egg being used in the embryo that will be gestated by the surrogate. Traditional surrogacy is the form of surrogacy where the source of the egg comes from the surrogate herself. The source of the sperm may be that of the intended father or a sperm donor, but the surrogate actually has a genetic connection to the child that will be born from the surrogacy journey.
In contrast to traditional surrogacy, gestational surrogacy means the surrogate has no genetic connection to the child. The technological advancement of IVF means an embryo with absolutely no genetic connection to the surrogate can be transferred into the surrogate’s uterus, effectively eliminating, in many cases, the surrogate’s ability to retain parental rights to the resulting child. The genetics for the embryo transferred into a gestational surrogate can be a variety of combinations, including the genetics of both members of the intended parents, or the use of a donor egg, donor sperm, or donor embryo (with both the egg and sperm donated).
Legal Matters With Traditional and Gestational Surrogacy:
Traditional surrogacy, which is often akin to a form of adoption as it allows the birth mother a period of time to change her mind and keep the child, means the surrogate uses her own egg in the conception of the child. Each state has different laws regarding the legal process to finalize intended parents’ rights to a child born via a traditional surrogate, however, due to the genetic connection of the child to the surrogate, it poses a greater legal risk to ensuring that the intended parents are deemed the legal parents as the surrogate may have the ability to deny parental rights to them.
It is imperative that intended parents working with any type of surrogate ensure that they are deemed the legal parents of the child to confirm all important legal rights are vested in them such as visitation rights, medical decision rights, inheritance rights, and the ability to make lifestyle decisions for the child such as school and extracurricular activities. These rights do not extend to the intended parents if they are not deemed the legal parents of the child.
In the case of traditional surrogacy, states utilize different guidelines in making parentage determinations than in gestational surrogacy matters, as seen in J.F. v. D.B.,
116 Ohio St. 3d 363, 2007-Ohio-6750, 879 N.E.2d 740 (2007) (“we would be remiss to leave unstated the obvious fact that a gestational surrogate, whose pregnancy does not involve her own egg, may have a different legal position from a traditional surrogate, whose pregnancy does involve her own egg”).
The legal obstacles with traditional surrogacy was most notably raised in the media in the early 1980s with the case In the Matter of Baby M.[i].
In Baby M
, a traditional surrogate, Mary Beth Whitehead, fled New Jersey with the baby she was carrying for William and Elizabeth Stern and challenged the intended parents’ parental rights wanting to keep the child. The child was conceived through insemination with the sperm of William Stern and the egg of Mary Beth Whitehead, the traditional surrogate. The New Jersey Superior Court initially ruled in favor of the Sterns, however, following lengthy litigation, the Supreme Court of New Jersey found the surrogacy contract to be unenforceable and ordered the Family Court to determine legal custody of the child between Mary Beth Whitehead and the Sterns. Ultimately the Sterns were awarded custody of the child with visitation rights granted to Mary Beth Whitehead.
The case law more recently shows the legal risk of traditional surrogacy where a traditional surrogate challenged the parental rights of the intended parents one week after the birth of the child. In the case In re Baby
, 447 S.W.3d 807 (Tenn. 2014), the parties who entered into a traditional surrogacy arrangement filed a joint petition to grant parental rights to the intended parents and terminate rights of the surrogate. However, after the child was born, the surrogate filed suit seeking to revoke the parental order in favor of the intended parents which led to a legal battle over parental rights.
The seminal gestational surrogacy case acknowledging gestational surrogacy was Johnson v. Calvert[ii]
where the Court upheld surrogacy contracts as enforceable in the case of gestational surrogacy (facts involved the intended parents egg and sperm being transferred into a gestational surrogate who had no genetic connection to the resulting child). Within the case’s concurring opinion,
Surrogacy contracts touch upon one of the most, if not the most, sensitive subjects of human endeavor. Not only does the birth of a new generation perpetuate our species, it allows every parent to contribute, both genetically and socially, to our collective understanding of what it means to be human. Every child also offers the opportunity of a unique lifetime relationship, potentially more satisfying and fulfilling than any other pursuit.[iii]
Medical Process with Traditional and Gestational Surrogacy:
Typically, in the case of traditional surrogacy, the surrogate is impregnated through means of artificial insemination (which dates back to 1790) where her egg is fertilized with either the intended father’s sperm or a sperm donor. Intrauterine insemination (IUI) is a form of artificial insemination that can be done within a clinical setting with the assistance of a physician or can be done at home through a method referred to as the “turkey baster” method where the parties self-inseminate the traditional surrogate with a man’s sperm using a syringe or other injectable device. Many times because fertility doctors are reluctant to perform transfers with traditional surrogates, the transfer of sperm into a traditional surrogate is done through a form of artificial insemination, many times not within a clinical setting.
Because gestational surrogacy does not involve the egg of the surrogate, the intended parent(s) must create embryos with the intended mother’s egg or an egg donor. Due to the nature of requiring the fertilization of an embryo outside of the surrogacy’s body, in vitro
fertilization (IVF) is required for gestational surrogacy to be performed in a clinical setting.
[i] In the Matter of Baby M
., 109 N.J. 396 (1988).
[ii] Johnson v. Calvert
5 Cal.4th 84, 19 Cal.Rptr.2d 494; 851 P.2d 776, (1993).