Surrogate and Gestational Carrier


Surrogacy is a form of assisted reproduction technology and occurs when a woman carries a child through a pregnancy for another individual or couple.

In traditional surrogacy, the woman not only carries the fetus but also supplies the egg to create the pregnancy. Traditional Surrogacy generally results from Artificial Insemination ("AI"). Artificial insemination can also occur when a woman uses a known sperm donor or unknown sperm donor.

Gestational Surrogacy, by contrast, is a much more recent development because it results from in vitro fertilization. A Gestational Surrogate carries the fetus during the pregnancy, but she does not provide the egg. Instead, the egg is provided by an egg donor (or, by the intended mother, in the case of a woman who cannot carry the baby for medical reasons). The egg is fertilized by the process of in vitro fertilization, then grown into an embryo, and then implanted into the gestational surrogate. In gestational surrogacy cases, your attorney will obtain a pre-birth order allowing the child's birth certificate to reflect the intended parents’ names at birth.

Gestational Carriers

Building your family through the use of a Gestational Surrogate and/or Egg or Sperm Donor is complicated.  Once potential candidates have been identified, the process of ensuring that they qualify medically and psychologically can be time-consuming and expensive. You must have lawyers and medical professionals to assist you in this process.

The serious nature of the legal rights in a Gestational Surrogacy, Egg Donor or Sperm Donor agreement necessitates the participation of trained and licensed professionals. You should only proceed after you have a drafted a reasonably detailed agreement, which delineates the rights and responsibilities of the intended parents and the Surrogate and clearly stipulates which State laws will apply. It is only through this process that the parties subject to the contract can have confidence that a child born through the surrogacy/egg/sperm donation program will reduce any potential legal conflict. This then allows them to enjoy the pregnancy and hopefully develop a close supportive relationship with the Surrogate.

In Maryland, there are no statutes governing Surrogacy. There is an evolving body of legal precedent that recognizes the intended parents as the birth parents, and the courts follow this precedent to order the birth certificate amended to reflect this fact. The Maryland courts have held that so long as the surrogacy has a sufficient "nexus" to Maryland, Maryland courts have jurisdiction and will apply Maryland case law even if the prospective parents reside in another state. However, the use of a Traditional Surrogate is questionable from a legal perspective in Maryland. In 2000, the Maryland Attorney General issued an opinion suggesting that traditional surrogacy violates the baby selling laws.

Virginia Statutes provide a legal method in Virginia for obtaining a pre-birth order, which allows placement of the name(s) of the intended parent(s) on the original birth certificate. However, the pre-birth order process is intrusive and expensive especially because it requires that a home study be done. The more common process for surrogate mother arrangements involves two basic steps:  The first step in the process is entering into a contract governed by Virginia law prior to the assisted reproductive technology procedure (artificial insemination or in vitro placement) takes place. The second step is having the birth certificate amended after the birth of the child. This two-step process is relatively simple and can be done as long as the child is born in Virginia and at least one intended parent is genetically related to the child. For children born outside of Virginia, a court order is required and the process is more involved but can be accomplished via an Order of Parentage and, when necessary, if one intended parent is not genetically related, a step-parent adoption.

Jennifer has represented Gestational Carriers and Intended Parents for over fifteen years.  She works closely with her clients and only works with a select number of clients at a time to ensure she can provide direct and hands on, client centered services.  If you are looking for a Gestational Carrier, call Jennifer to discuss your options.   

Surrogate Intake form

Traditional Surrogate

In a traditional surrogacy, the wife of the father will need to file an adoption petition in order for her to become the legal mother, instead of the surrogate remaining as the legal mother.  If the surrogate resides in Maryland, the wife can adopt her husband's child in a Maryland court, even though the wife lives in a different state or a different country. However, traditional surrogacy is not used frequently because the surrogate is the child’s legal parent which increases risks and legal issues. In 2000, the Maryland Attorney General issued an opinion suggesting that traditional surrogacy violates the baby selling laws. Only a carefully drafted and properly executed surrogacy contract with proper precautions and assumption of risk may be approved by the Court.

Maryland does not prohibit gay or lesbian couples from engaging in surrogacy arrangements.

Maryland Rule 9-103 provides that one of the requirements in a petition for adoption is that the petitioner must state how the child was identified or came to be in the custody of the person asking to adopt. The rule requires the names of "intermediaries or surrogates" and "a copy of any surrogacy contract." This rule demonstrates Maryland’s acceptance of the use of surrogates in order to build your family.

Maryland is a surrogacy "friendly" state and there is a statute for surrogacy in Virginia. However, surrogacy is illegal in the District of Columbia.  For a map on surrogacy across the country, you can click surrogacy map.

Jennifer represents surrogates, intended parents, egg donors and sperm donors and has extensive experience drafting agreements regarding these situations.

Will our surrogate have medical insurance?

Usually insurance will cover pregnancy and delivery, with relevant deductions or co-pays.  You will know when matched with a surrogate what type of insurance she has and/or if we need to arrange for a policy for her, which is very likely.  There are many insurance plans that now exclude a surrogate pregnancy.  The good news is that there are also plans exclusively for a surrogacy arrangement that will insure coverage. 

What is third party reproduction?

Third party reproduction enables an individual the chance to have a child that would otherwise be impossible.  Third party reproduction includes donor sperm, donor eggs, donor embryo, surrogacy, and gestational carrier. 

Difference between traditional and gestational surrogate

A gestational carrier or surrogate is a woman who carries a child conceived through the process of in-vitro fertilization utilizing the egg and sperm of either the intended parents and/or an egg donor or a sperm donor.  This is different from a traditional surrogate who supplies the egg and is the biological mother of the child she carries and delivers.  

What is third party reproduction?

Third party reproduction enables an individual the chance to have a child that would otherwise be impossible.  Third party reproduction includes donor sperm, donor eggs, donor embryo, surrogacy, and gestational carrier. 

“I believe in working with each of my clients—in support of their family dynamic—to make the dreams of parenthood a reality. Whether you are single or married; or gay; a step-parent, a surrogate or intended parent or a child of adoption, it is my mission to serve as your advocate. With a dedication to the ethical and sensitive nature of each situation, I will help you understand the laws within Maryland or Washington, DC for adoption or surrogacy, and pledge to be your partner throughout the journey.” - Jennifer Fairfax

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