How Does Surrogacy Work? (IPs)

If you’re just starting to consider how to have a baby through surrogacy, the following information will help you learn more about the surrogacy process in MD, VA and D.C.

Choose the Type of Surrogacy You Want to Complete

First, you’ll need to choose the surrogate process that you want to pursue. There are two ways that you can choose to grow your family through the procedure of surrogacy in D.C., MD and VA:

Traditional Surrogacy:

In the traditional surrogacy process, the surrogate uses her own artificially-inseminated egg with sperm from either the intended father or a donor. Because the surrogate is the baby’s biological mother in a traditional surrogacy, she will need to relinquish her legal parental rights to the intended parents upon the birth of the baby, similar to a birth mother in an adoption.

In most cases, an Adoption Petition will need to be filed by the intended parents in order to terminate the legal parental rights of the surrogate in a traditional surrogacy process, as she is the biological mother of the child. A traditional surrogate can refuse to place the child and the surrogacy agreement cannot be enforced even in jurisdictions that allow traditional surrogacy.

In Maryland, there is an Attorney General opinion that made it clear that compensation to a traditional surrogate violates the baby selling laws and that an adoption would be necessary after the birth of the traditional surrogate’s child. The adoption will only be granted if the court determines the adoption is in the best interest of the child.  

In the District of Columbia, traditional surrogacy statutes dictate that the court may not issue an order of parentage until at least 48 hours after the birth of the child, even if the surrogate intends to offer her consent to terminate her parental rights.

In Virginia, unless you are biologically related to the child, you are not legally considered to be that child’s parent, so an adoption after the birth of a child born via surrogacy is required unless you are an opposite-sex couple and at least one of you is genetically related to the baby. This is true for both traditional and gestational surrogacy in VA.

Thus, traditional surrogacy entails legal, financial and emotional risks that the parties must be willing to accept.  Traditional surrogacy is no longer frequently used because there are increased risks and legal issues associated with this type of surrogacy method. 

Gestational Surrogacy:

A gestational surrogate, also sometimes called a gestational carrier, is not the biological mother of the baby she carries and delivers. Instead, an embryo is created through in vitro fertilization (IVF) from the egg and sperm of either the intended parents or donors. The embryo is transferred to the surrogate.

Because gestational surrogates have no biological ties to the baby they carry, there are significantly fewer legal and emotional complications involved in the gestational surrogacy process compared to the traditional surrogacy process.


The Three Ways to Find a Surrogate

Once you’ve decided on the surrogacy method that you feel is right for you, you’ll next need to find a surrogate.

The Family Formation Law Offices do not match intended parents and surrogates. However, we can help guide you in your search. We’ll offer you our extensive experience, as well as our advice and support, however you decide to search for a surrogate. In our initial consultation with intended parents, we’ll review the three ways that you can find a potential surrogate:

Independent Search

With this method of search, intended parents can network through family and friends, advertising and word-of-mouth. The intended parents will be responsible for screening the potential surrogate themselves, although we will be there to help counsel you through that vetting process of surrogacy.

Attorney-Owned Programs

These matching services are owned by attorneys who represent the intended parents. We are not an attorney-owned surrogacy program; we solely represent one party in the legal surrogacy process and do not provide matching services.

Non-Attorney-Owned Programs:

This type of program will help you search for and match with a surrogate, and both parties will retain their own separate legal representation. You can retain us as your legal representation through this method. The professionals employed by the program screen potential surrogates prior to the match. Some non-attorney surrogacy programs refer to themselves as “surrogacy centers” or “surrogacy agencies,” but it’s important to know that there is no licensing authority for these types of surrogacy programs.

Most intended parents who work with us choose option 1 or option 3 when searching for a surrogate. The first option can save you a significant amount of money by doing it yourself, while the third option can be beneficial to intended parents who don’t feel comfortable searching for or screening potential surrogates on their own. We can continue to legally represent you throughout your surrogacy process with either option.

Creating Surrogacy Contracts

Next, we’ll establish a series of legal contracts between you and your surrogate. These include details such as parental rights, custody, choice of hospital for delivery, post-birth contact between the parties, and health insurance. The agreement will also cover who makes medical decisions and how those decisions will be made during a pregnancy, payment of medical bills, liability for medical complications, financial considerations such as the gestational carrier/surrogate’s compensation and expenses including lost wages, legal fees, child care, housekeeping, and maternity clothes, coverage for life insurance, the need to provide medical history and personal medical information, continued contact through the process, and intended parents’ presence during doctor visits and the delivery.

The Medical Process of Surrogacy

Once you’ve been matched with a surrogate and all the necessary legal contracts and processes are complete, the medical process will begin.

This can vary depending on the type of surrogacy that you’re pursuing but, put simply, it will involve transferring embryos to your surrogate’s uterus until you’ve achieved a successful pregnancy.

Once a healthy pregnancy is confirmed by your fertility clinic, the surrogate will continue to go about her daily life, attending routine prenatal checkups like she would with any pregnancy. Depending on the type of relationship established with your surrogate in your contract, you may communicate with her about how her pregnancy is progressing, and if distance and your contract permit it, you may attend her doctor’s appointments and other medical steps of the surrogacy process up until the birth of the baby, which you will also be present for.

Finalizing the Surrogacy Process

Depending on your state of residency and the state the surrogate lives in, we’ll complete a series of steps to legally protect your parentage throughout the MD, VA or D.C. surrogacy process.

If you live in Maryland or the District of Columbia, we’ll complete a pre-birth order in the surrogate’s third trimester, which legally confirms you as your child’s parents. Your baby will be discharged to you directly at the hospital.

If you live in Virginia, a pre-birth order is not permitted. If you’re a same-sex couple living in Virginia, an adoption will be required after your baby is born to protect your legal parental rights. If you’re an opposite-sex couple in Virginia, an adoption will only be required if neither of you is biologically related to your baby. As experienced adoption attorneys, we can provide any legal services you need to secure your parental rights through these adoption proceedings.

We’ll help you navigate these laws throughout the process of surrogacy in Virginia, Maryland, Washington D.C. and in any state within the U.S. so that your family is protected.

Still wondering, “How does surrogacy work in Maryland/Virginia/the District of Columbia?” Contact us for a legal consultation now. We’re here to answer all your questions.

“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