Traditional Surrogacy vs. Gestational Surrogacy: Differences in the Legal Process

Traditional Surrogacy vs. Gestational Surrogacy: Differences in the Legal Process

Surrogacy has become a popular option for couples or individuals who are unable to have a child on their own. It involves a woman, known as the surrogate, carrying and giving birth to a child for someone else. While the concept of surrogacy has been around for centuries, the legal process surrounding it has evolved over time. In particular, there are two types of surrogacy: traditional surrogacy and gestational surrogacy. Both options have their own unique legal processes, and it is important for intended parents and surrogates to understand the differences. In this blog post, we will explore the legal process involved in traditional surrogacy and gestational surrogacy.

Traditional Surrogacy

Traditional surrogacy, also known as genetic or partial surrogacy, involves the use of the surrogate’s own egg to conceive the child. The surrogate is artificially inseminated with the intended father’s sperm or donor sperm, and she carries the child to term. This means that the surrogate is both the biological and gestational mother of the child, and she has a genetic connection to the child.

The Legal Process

The legal process for traditional surrogacy varies depending on the state or country where the surrogacy arrangement takes place. Some states have specific laws governing traditional surrogacy, while others do not have any laws at all. In states with no specific laws, traditional surrogacy is often treated the same as adoption, and the intended parents must go through the same legal process as they would with any adoption.

In states with specific laws, traditional surrogacy contracts are typically required. These contracts outline the rights and responsibilities of both the surrogate and the intended parents. They also address important issues such as the surrogate’s compensation, medical expenses, and the intended parents’ rights to the child. It is important for both parties to have their own legal representation and to carefully review and negotiate the terms of the contract before signing.

Once the child is born, the intended parents must go through the legal process of establishing their parental rights. This may involve a court hearing to terminate the surrogate’s parental rights and establish the intended parents as the legal parents of the child. In some states, a pre-birth order can be obtained before the child is born, simplifying the legal process for the intended parents.

Traditional Surrogacy vs. Gestational Surrogacy: Differences in the Legal Process

Gestational Surrogacy

Gestational surrogacy, also known as full surrogacy, involves the use of a gestational carrier to carry the child. In this type of surrogacy, the surrogate has no genetic connection to the child, as the embryo is created using the eggs and sperm of the intended parents or donors. This means that the intended parents are the biological parents of the child, and the surrogate is only the gestational carrier.

The Legal Process

The legal process for gestational surrogacy is generally more straightforward compared to traditional surrogacy. In most states, gestational surrogacy is governed by specific laws or court rulings, making the process more predictable and consistent. This means that the intended parents and the surrogate can enter into a surrogacy contract with more certainty and protection.

Similar to traditional surrogacy, the surrogacy contract outlines the rights and responsibilities of both parties, including compensation and medical expenses. It also addresses issues such as the intended parents’ rights to the child and the surrogate’s role in the child’s life after birth. It is important for both parties to have their own legal representation and to carefully review and negotiate the terms of the contract before signing.

Once the child is born, the intended parents must go through the legal process of establishing their parental rights. This typically involves a court hearing to terminate the gestational carrier’s parental rights and establish the intended parents as the legal parents of the child. In some states, a pre-birth order can be obtained before the child is born, making the process even more streamlined for the intended parents.

Summary

In summary, traditional surrogacy and gestational surrogacy have different legal processes due to the biological relationship between the surrogate and the child. Traditional surrogacy involves the use of the surrogate’s own egg, while gestational surrogacy does not. This difference affects the legal rights and responsibilities of both the surrogate and the intended parents. It is important for intended parents and surrogates to carefully consider and understand the legal process involved in their chosen type of surrogacy.