How To Become A Surrogate Mother? Process And Legal Aspects

December 12, 2023 by Manasa Hegde

Nowadays, there are many couples who want to become parents, but are unable to conceive or naturally carry a child. However, unlike in the past, couples and individuals today have some viable options that give them the chance to have a child that they want and deserve so much. One such option is a surrogate mother.

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What Is A Surrogate Mother?

A surrogate mother means a woman who carries and gives birth to a baby for another woman or a couple who are unable to conceive and want a child. Surrogacy is a great option, especially for those who have a medical condition that makes pregnancy or giving birth dangerous or impossible. The types of conditions that may make getting a surrogate mother necessary include:

Malformation or absence of the womb
Recurrent loss of pregnancy
Repeated failures of IVF implantations

Types Of Surrogacy

There are two types of surrogacy – traditional and gestational . Each works in a different way.

1. Traditional surrogacy, also known as partial or straight, involves the surrogate mother’s egg and the intended father’s sperm. In this type of surrogacy, fertilization is usually done by intrauterine insemination (IUI) or artificial insemination.

2. Gestational surrogacy, also known as full or host, involves implanting an embryo that is created using the intended couple’s eggs and sperm, a donated egg that is fertilized with the intended father’s sperm or an embryo that is created by using donor eggs and sperm. This is also known as in vitro fertilization or IVF.

How To Become A Surrogate Mother?

Surrogacy can be done through an agency or arranged privately. No matter how it is done, it is important to remember that surrogacy involves many physical, emotional and legal issues.

Working through an agency is beneficial as assistance and support is given to both the surrogate mother and the intended parents or individual. A good agency will always make sure that all parties get all the help and support they need in all matters related to the surrogacy and protect everyone’s interest.

The first step to becoming a surrogate mother is to find an agency and get in contact. It will provide the prospective surrogate with an application and then find couples or individuals who are looking to have a child.

Firstly, a prospective surrogate mother needs to first check if she is qualified. The laws that govern surrogacy vary from state to state, and there are state and federal rules that decide who qualifies and who does not qualify to be a surrogate. There are stricter provisions in some states to protect both surrogate mothers and prospective parents. The agency will explain the rules and qualifications which include age range, overall health and prior the pregnancy experience. However, it is important to note that there may also be additional qualifications which can make the whole process of becoming a surrogate mother more challenging.
Next, the surrogate mother-to-be needs to the fill out a detailed application. All questions need to be answered truthfully and not doing so will most likely result in legal consequences. Applications require basic information such as the surrogate’s age and also her state of health. Most applications also include a section that requires the applicant to verify that she understands the conditions she will be required to maintain through the pregnancy.
Before she is approved to become a surrogate mother, a woman is required to undergo medical and psychological testing. This is to make sure that both her physical and mental health is stable. Typically, this entails a thorough evaluation that is performed by a surrogacy institution’s staff. The tests will ensure that there is no risk of transferring hepatitis and HIV.
The applicant should make sure that she knows her compensation rights well. Most surrogate mothers that work through a reputed agency are usually paid, but the remuneration or compensation will vary from agency to agency. However, it is prudent to note that most of the payment is made so that the surrogate mother can use the money for expenses related only to the pregnancy.
Once the application is filled out and all tests are completed, the applicant is approved and needs to wait for the written contract. Yet, another advantage of working via an agency is that it will liaison with legal experts to make sure that the contract written up protects the rights of everyone involved in the surrogate process. Because of the agency’s experience, it will know exactly what needs to be covered in the contract. The only flipside is that no one has much say in what is written in the contract and the applicant will need to make sure that all her rights are properly spoken about and addressed before she signs.
The surrogate agency will work with the surrogate mother to arrange and schedule doctor appointments and other prescribed tests. This saves her the inconvenience of making appointments and also paying up for the many tests that are ordered during pregnancy. However, it is important to remember that the schedule that is arranged by the agency will have to be followed.
Once approval is given and the woman is accepted into the institution’s surrogacy program, the agency will start to refer her services to potential couples or individuals with whom she may fit well.
When a match has been determined to be compatible, a meeting between the surrogate mother and the biological parents or parent will be arranged. This will help in moving the process along so that an appropriate level of comfort can be determined.

Private Surrogacy

A private surrogacy can be arranged when a person knows someone who is on the look out for a surrogate mother. It can also be done through classified ads – answering or placing one. A private surrogacy offers more freedom than one done through an agency but it can also mean less protection.

A surrogate mother should make sure that she enters a surrogacy agreement with reliable people. With agencies, there are screening processes, but they do not exist with a private surrogacy. The surrogate needs to verify the reliability of the registered potential parents. It is important to ask for character references if the parents to be are not known or friends or family.
Being aware of possible genetic problems is important. In the traditional form of surrogacy, the intended father’s sperm is medically injected into the surrogate mother’s egg. One should not go through this type of arrangement with immediate family as it can lead to inbred genes. A traditional surrogate arrangement should be only when the intended father’s sperm and intended mother’s eggs are used.
A surrogate mother will need to be ready to handle all legal aspects of the arrangement and sort through all the legalities on her own. She will need to inform herself of all laws that govern surrogacy in the state she lives in and also have a detailed contract drafted to protect herself. The disadvantage is that she will need to hire a lawyer and that will mean extra expense. However, the good thing is that she will have a greater involvement in the whole process as well as a lot more hold and say over what conditions are set out or written in the contract.
Prospective parents often opt for private surrogacy as it saves them a lot of money, but for surrogate mothers, it means that they do not receive as much of a remuneration as they would with an agency.
Surrogate mothers can set their own payment rate, but in most cases, the parents to be, just pay for the medical expenses that the pregnancy calls for, or part of it, and not much more.
In a private surrogacy, a surrogate mother can choose the tests, she gets, based on what she feels are necessary. She will need to verify if her health is in a condition to get pregnant and give birth. Tests for STDs and psychological exams can be skipped unless the prospective parents demand them.
It is important to know the prospective parents’ medical health and ensure that neither of them have any infectious or communicable disease that can pass to the surrogate mother during the implantation process.
A private surrogacy can be less structured than one done through a reputed agency. It gives the surrogate the freedom to schedule meetings or sessions with the prospective parents, doctor appointment, etc. at her own pace. However, this means that a lot more self-discipline is required.
Apart from the points mentioned above, surrogate mothers will need to:
Make sure that the endometrial is prepared so that there are no problems when the time comes to implant the embryo. This means taking birth control pills at the onset of the menstrual cycle to regulate the reproductive system.
Visit the doctor for hormone injections that are needed to stimulate the pituitary gland and regulate the ovaries to prepare it for the pregnancy.
Make sure that estrogen injections are received. This is important as these injections ensure that endometrial lining thickens.
Go for a vaginal ultrasound which is required to measure the thickness of the endometrial lining and ensure that it is ready for implantation.
Stop the hormone injections for the pituitary gland when the eggs are donated. Continue receiving the estrogen injections and begin progesterone injections.
Find a qualified doctor who is trained and experienced in implantation. For surrogates working with an agency, it will either refer one or in most cases have its own. Private surrogates have to work with the prospective parents to be in order to find a good doctor.
Schedule regular checkups. A surrogate’s prenatal checkup timeline will be the same as a timeline followed during a standard pregnancy.
Surrogate mothers need to stay in contact with the parents consistently. It is important for all parties to be equally involved in the pregnancy. Parents should be included in doctor appointments and kept updated on everything related to the pregnancy. It is important for everyone to communicate openly whether it is voicing concerns or easing them. Giving each other assistance, support and respect will ensure a smooth surrogacy process.
Get emotional support. Pregnancy can be stressful and the entire surrogacy procedure in itself can be even more taxing, emotionally and mentally. This is why a strong support base is important. Surrogate mothers should seek emotional support from spouses or family members. They can also meet other women going through the same experience or join a support group.
Give top priority to the baby’s health. Surrogate mothers need to ensure that they take care of their health and that of the child they are carrying as if it were their own pregnancy.
Know what to do in case of a miscarriage. This will be a time of grief for both surrogate mothers and intended parents. Professional therapy or a support group can be helpful in such times. It is also important for surrogate mothers to understand the legal protections. They should not be held at fault if their body rejected the pregnancy or if the miscarriage was an accident.

Gestational Surrogacy – The Overall Process

In most cases, childless couples or individuals opt for gestational surrogacy. In this type of surrogacy, the surrogate mother does not have any genetic connection to the baby she carries. Her egg is not used and the baby will be biologically related to the egg donor or the intended father and mother. From a psychological standpoint, it is important for the surrogate mother to think about how comfortable she is with her connection to the child and the intended parents. If she becomes a surrogate mother for a relative or friend, the delicate relationship may be challenging to manage at present and in the future.

Surrogate candidates should make sure that they are making the right decision as it involves themselves as well as their family. The first step is educating all parties involved through a thorough screening process. This process includes an application to the surrogacy program, an educational interview, psychological testing and assessment, background checks, medical tests and independent legal counsel for drafting and negotiating agreements that are legally binding.

Once the intended parents’ embryo is transferred and a viable pregnancy is achieved, a third party should be brought in to help in managing the relationship. This also helps in ensuring that everyone’s needs are met and all parties feel supported and respected.

As mentioned earlier, reputed agencies provide assistance to surrogates through the entire process. Once the admissions process begins, an expert is assigned to them and as soon as a match is cleared, a team of experts are assigned to the surrogates and they provide support until the pregnancy is completed. The ultimate goal of this support and assistance is to provide the experience that both surrogates and intended parents are looking for and also experts to help them accomplish their goal.

Surrogacy And The Legal Aspects

Apart from the emotional and medical issues that are involved in surrogacy, there are also a number of legal considerations that need to be addressed. This may require putting all legal requirements that are a part of the surrogacy arrangement in writing. Getting legal counsel before the surrogacy process begins is wise as it will help the surrogate answer questions and clear any doubts she may have.

The issues can include the requirements of both the surrogate mother and the biological parents or parent. It may also entail writing a finance-related contract that outlines how the surrogate mother will be reimbursed for all medical and other related expenses. The process of impregnating the surrogate mother can begin once all these issues have been addressed and put in writing.

The legal issues that are involved in surrogacy are complicated, which is why it is advisable for surrogate mothers needed to seek legal advice before making any decisions. It is important to note that surrogacy arrangements cannot be legally enforced, even if a contract has been signed and all expenses have been paid.

As mentioned earlier, the laws governing surrogacy are different in every state. This is why it is important to hire a lawyer who knows the ins and outs of surrogacy laws in the state that the process will take place. This will ensure that the contract that is drafted is fair and addresses the concerns and protects the rights of all parties involved. It should cover all major aspects of the surrogacy process such as:

Clear identification of the person or persons who will retain legal custody of the child after birth.
Clear specification about whether the surrogacy process will be gestational or traditional.
Indication of the number of embryos that will be transferred if it is a gestational surrogacy.
Clearly state what will happen to rights and obligations if multiple babies are born.
Clear outline of the number of times the baby will be tested during pregnancy and a rough schedule of when those tests will be done.
Clearly state what will occur in the event that test results are poor.
Include a miscarriage clause for protection in case of an accidental miscarriage or the surrogate’s body rejects the pregnancy.
List of financial obligations, starting from who will make payments for checkups to issues regarding compensation.

Legal Obligations

A surrogate mother’s legal obligations will depend on the contractual agreement and they include:

She will be legally and morally obligated to show that she can maintain the whole pregnancy. She will be required to attend all prenatal checkups and if a problem occurs, seek immediate medical support. She should also avoid any sort of reckless habits or behavior that could put the baby’s life in danger.
She will be required to give the baby up at birth. There has been, more than one case documented wherein the surrogate mother has refused to give up the child after the birth; however, with a well-written contract, this can be prevented. No matter how attached a surrogate gets to the child during the pregnancy, she needs to prepare herself to give the child to the biological parents soon after giving birth.
She cannot terminate or choose to end the pregnancy early without both the parents’ consent especially if the written contract clearly prohibits it. However, there is a clause that allows for this to be made possible, which is when the surrogate mother’s life is in danger due to the pregnancy and calls for immediate termination.

Legal Protection

Like the legal obligations that a surrogate mother has, her protections are also in the contract. It is important for her to understand how she is kept safe under the law.

Unreasonable measures cannot be put into action unless they are clearly included and outlined in the contract. For example, if the biological parents decide overnight that the child birth should happen without any medications, they do not have the authority to force it upon the surrogate mother, unless she has agreed to it in the contract.
Termination of the pregnancy cannot be forced unless the contract grants them that right. However, the law allows for parents to refuse taking the custody of the baby soon after delivery, in some cases.
If a surrogate mother’s life is in danger due to a medical threat, she is not obligated to go through with the complete pregnancy term and child birth.
A surrogate’s privacy is generally protected to a certain extent depending on how the mother prefers it to be. In some cases, regular communication may be a part of the contract, but a surrogate mother can if she wishes, maintain a certain level of privacy. No one can dictate the everyday life of a surrogate, but if legal obligations are being neglected, parents do have the right to call for or demand immediate action.

No matter what type of surrogacy is chosen, there is no doubt that it is a complex process that affects everyone physically, mentally and emotionally. The legal aspects are also complicated, which is why
much care needs to be taken while drawing up a contract. It is also important to make sure that the attorney hired looks out for the interests of all parties involved at all times. With a fair and well covered contract, the surrogate mother and intended parents are guaranteed to be satisfied throughout the process.

Being a surrogate mother is not easy which is why one needs to think long and hard before considering it. However, despite everything, there is nothing quite fulfilling as choosing to be a surrogate mother, and thereby giving intended parents or parent the dream of starting a family. It is not about financial gain; a surrogate mother’s role in building a family is priceless. It is the chance to make a wish for deserving people come true and giving them the child that they have always longed for.

If you have decided to be a surrogate mother, be prepared for the many legal obligations and also to give up the child. Being a surrogate mother is not all fun! The many hardships you go through of carrying a baby, may not always equate to the compensation you receive. However, it is a very noble act and will give you the satisfaction of having helped a family have a child!

Image Credit: freepik

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