When making the decision of joining the surrogacy community, you most likely make a research about the process -whether you are looking to become a Surrogate, an Egg Donor, or an Intended Parent– and about the laws and legalities of it. The history of surrogacy is incredible and deserves to be celebrated, especially by those looking to become part of it or who are already a member of the surrogacy community. That’s why we decided to provide a more detailed background on this matter and how we got to where we are today, including many of those laws that you likely read about.
If you want to get technical, traditional surrogacy has been around for thousands of years; ancient kings and queens had servants carrying children for queens who could not give birth. Legal protections for conventional surrogacy, and gestational surrogacy in general, are much more recent though, with the first legal compensated surrogacy agreement being drafted in 1976 by Noel Keane.
Another process had been in the works long before this first legal surrogacy document was drafted, which would later open up the surrogacy process and further options to allow thousands of families in the US to have children via Surrogate – In Vitro Fertilization (IVF). As such, surrogacy and IVF history are closely intertwined: without IVF, this kind of surrogacy would not be a possibility, leaving this type of orthodox surrogacy as the only option for Intended Parents –celebrating IVF’s successes and milestones is also celebrating surrogacy’s successes and milestones.
IVF seems like a fairly recent fertility treatment, but in fact scientists have been working on it since the 1800’s. The first medically documented experiment was in the mid-1800’s when a New York physician performed the first intrauterine insemination (sadly, it ended in a miscarriage). From that research into fertility treatments, it slowly began to evolve, and the first infertility clinic was opened in 1926. Over the next half century, testing evolved from animals to humans, and a number of legal obstacles were to be worked around or changed. Finally, after the first successful pregnancy created from IVF ended in an ectopic pregnancy, Louise Joy Brown was born on July 25, 1978 in England, becoming the first successful living birth through IVF. Following England came Australia with the second successful IVF birth, and then the US with the third. After this, IVF accelerated at a rapid pace to where we are now, with over one million babies being born in the US alone using IVF, and allowing the possibility of surrogacy by gestation.
Types of Surrogacies
There are two types of surrogacies: traditional surrogacy and gestational surrogacy. Traditional is the oldest form of surrogacy, dating back thousands of years: it is when the Surrogate mother is genetically related to the child she is carrying and has become pregnant through traditional methods. Gestational, on the other hand, was developed in the 1900’s when IVF became a successful method of pregnancy, and allows the Intended Parents to be genetically related to the baby the Surrogate is carrying.
The first successful birth through this surrogacy was in 1985. Since then, it has become the most popular form of surrogacy as it offers Intended Parents a way for one or both individuals to be genetically related to the baby.
As far as gestational surrogacy has come since the first gestational Surrogate birth in 1985, there were a number of legal hurdles to navigate up to this point, and still more to go. Speaking strictly of US legalities, individual states create and enforce their surrogacy laws. This means that while surrogacy may be legal and fairly easy to navigate in one state, in another it may be legal but with more restrictions, and yet another one may be illegal altogether. There are three US states in which compensated surrogacy is prohibited (Louisiana, Michigan, and Nebraska), and New York only just made it legal in February of 2021.
While it may be surprising that a state such as New York only just made compensated surrogacy legal so recently, there are a few other states that have only made surrogacy by gestation legal in the past few years as well: Maine in 2016, Iowa in 2018, Vermont in 2018, Oklahoma in 2019, and Washington in 2019.
There are actually only a handful of states which explicitly permit compensated traditional surrogacy; a majority of states have no laws on it and as such, while it is not technically illegal, it may be more difficult to obtain the necessary documents to ensure the Intended Parents are named on the baby’s birth certificate.
The murky laws surrounding traditional surrogacy have made gestational surrogacy more appealing to Intended Parents, not only because this last one allows for one or both individuals to be genetically related to the baby. In 1986, a famous surrogacy case made clear the legal battles that could ensue from a traditional surrogacy. A couple used a traditional Surrogate to have a baby using the Intended Father’s sperm and agreed to pay the Surrogate $10,000. However, when the baby was born the Surrogate mother decided she could not give the baby up. Ultimately the courts granted custody to the Intended Father as he was also the biological father, but the case made clear that legally binding contracts needed to be advanced for surrogacy, and increased popularity of gestational surrogacy.
Despite many US states still making it challenging to grow your family via compensated surrogacy, it is far easier to do so than in other countries, many of which ban surrogacy altogether. For this reason some international couples and individuals choose to work with agencies within the US to have a baby via Surrogate. We are proud to say that we have worked with Intended Parents from over 20 countries. You can learn more about becoming international Intended Parents here.
Surrogacy has come a long way since its origins, and you don’t have to go through the process alone (in fact, we recommend that you don’t!). Agencies like Simple Surrogacy are here to help you navigate the legal hurdles and medical processes, as well as celebrate your growing family with you. With 20 years of experience, we have witnessed and lived through much of the recent history of it, and we use that knowledge and experience to guide our Surrogates, Egg Donors, and Intended Parents. Contact us now to start your surrogacy journey.
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