Surrogacy History at a Glance

When making the decision to join the surrogacy community, most likely you researched the process–whether you are looking to become a Surrogate, Egg Donor, or Intended Parent– and the laws and legalities surrounding it. A lot of the information probably mentioned tid bits on the history of surrogacy, such as how some of the current laws you researched came to be, but nothing extensive. The history of surrogacy is incredible and deserves to be celebrated, especially by those looking to become part of or are already a part of the surrogacy community! That’s why we decided to provide a more detailed background on this history of surrogacy and how we got to where we are today, including many of those laws that you likely read about!

Surrogacy’s Origins

If you want to get technical, traditional surrogacy has been around for thousands of years; ancient kings and queens had servants carry children for queens who could not bear a child. Legal protections for traditional surrogacy, and gestational surrogacy in general, are much more recent though, with the first legal 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 options further to allow thousands of families in the US alone to have children via Surrogate– In Vitro Fertilization (IVF). As such, surrogacy and IVF history are closely intertwined; without IVF, gestational surrogacy would not be a possibility, leaving traditional surrogacy as the only option for Intended Parents– celebrating IVF’s successes and milestones is also celebrating surrogacy’s successes and milestones.

IVF

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 there research into fertility treatments slowly began to evolve, and the first infertility clinic was opened in 1926. Over the next half a century, testing would evolve 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 live 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 for the possibility of gestational surrogacy.

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 surrogacy, on the other hand, was developed in the 1900’s when IVF became a successful method of pregnancy, and allows for the Intended Parents to be genetically related to the baby the Surrogate is carrying.

Gestational Surrogacy

The first successful birth through gestational 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 there are still more to go. Speaking strictly of US legalities, individual states create and enforce their surrogacy laws. This means that while gestational surrogacy (or surrogacy in general) may be legal and fairly easy to navigate in one state, in another it may be legal but with more restrictions, and in yet another compensated surrogacy may be illegal altogether. There remain three US states in which compensated surrogacy is prohibited (Louisiana, Michigan, and Nebraska), and New York only just made compensated surrogacy 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 gestational surrogacy legal in the past few years as well: Maine in 2016, Iowa in 2018, Vermont in 2018, Oklahoma in 2019, and Washington in 2019.

Traditional Surrogacy

There are actually only a handful of states which explicitly permit compensated traditional surrogacy; a majority of states have no laws on traditional surrogacy 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 further made gestational surrogacy more appealing to Intended Parents, not only because gestational surrogacy 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.

International Surrogacy

Despite many US states still making it challenging to grow your family via 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. Simple Surrogacy is 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, Simple Surrogacy has witnessed and lived through much of the recent history of surrogacy 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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