What is Surrogacy?

You may be wondering, what the heck is a surrogate?  It turns out this is can be a very loaded question, so to start I will give you the Wikipedia definition:

"Surrogacy is an arrangement in which a woman carries and delivers a child for another couple or person. This woman, the surrogate mother, may be the child's genetic mother (called traditional surrogacy), or she may be biologically unrelated to the child (called gestational surrogacy)."

I will be a gestational surrogate, meaning I will have no biological relationship to the child I carry.  We will use the process of in-vitro fertilization (IVF) to impregnate me with someone else's already created and growing embryos.  These embryos will either come from the egg and sperm of both parents, or as is often the case in a couple with fertility problems or a same sex couple, an egg donor and the father's sperm.  I will carry the child, and once it is born, I will give it to its parents (referred to as the Intended Parents or IPs), who will have full legal and financial responsibility for it.

Sounds simple enough, right?  Not so much.  Surrogacy is a hugely complicated path toward creating a family.  First of all, there are laws to consider.  There is no national law regarding surrogacy, so each state is different.  Some states are considered "surrogacy friendly," others have ambiguous laws regarding surrogacy, and in some states, surrogacy contracts are unenforceable or even illegal.  Some states allow surrogacy only if it is uncompensated.  Some allow it only if one or both parents are biologically related to the child.  Some states only allow heterosexual married couples to use surrogacy to build their family.

And then there is the issue of the birth certificate.  Traditionally, any woman who bears a child is listed as its mother on the birth certificate.  If she is married, her husband is automatically listed as the father.  Any changes made to this normally require legal proceedings in which the "birth parent" gives up custody of the child and the new parent adopts it.  However in the surrogacy setting, this arrangement isn't the preferred way of doing things.  For one thing, even if birth mothers have an adoption plan in place before their child is born, there is still a certain amount of time after the child is born in which they can change their minds.  This creates huge problems in the event of surrogacy, where the intended parents have payed (usually out of pocket) all of the costs for the IVF procedures for getting the surrogate pregnant, as well as all of her uncovered medical expenses, fertility and pregnancy related travel expenses, and usually additional compensation for her pain and suffering during the pregnancy as well.  Not to mention, the child isn't even biologically related to the birth mother and father, and is almost always related to at least one of the IPs.  These possibilities make the whole situation very risky for intended parents and leaves the door open for huge battles in court.

Then there is the issue of the adoption from the GS's perspective.  Most GSs don't want their name anywhere near a birth certificate of a child that isn't theirs.  What if the IPs change their mind, or something goes wrong and the adoption isn't approved?  All of a sudden you have a child that you weren't planning on having.  And placing a child for adoption, even one that isn't biologically yours, can have ramifications down the line.  For example, most people are not approved to adopt a child if they have placed a child for adoption in the past.  What if complications from this pregnancy result in loss of my fertility?  My husband and I are planning to have another child of our own one day, and if (God forbid) we can't do it "the old fashioned way," we definitely want to keep adoption open as a option.

The solution to these complications is the pre-birth order (PBO).  This is a legal document that is completed before the child is born, ordering that the intended parents be placed directly onto the birth certificate at birth.  The PBOs eliminate most risks both to the GS and the IPs, and are almost always obtained where possible.  Since there aren't many laws regarding surrogacy yet, there are very few states with any written laws regarding PBOs.  Therefore, the ease of obtaining a PBO varies widely by state, county, and even individual judge.  A PBO must be obtained in the state that the child will be born in, so the GS's state is the one that matters, unless she is planning to travel for the birth.

In the state of Missouri, which is the state that matters in my circumstances, there are no official PBO or surrogacy laws.  But a PBO can USUALLY be obtained given that at least one of the IPs is biologically related to the child.  At the time of birth, the parent who is biologically related to the child is placed on the birth certificate (if both are, they would both be listed).  The GS and her husband do not appear on the birth certificate at all.  If the other parent needs to be added to the birth certificate, they will complete the same procedure as is done in a step parent adoption after the baby is born.  This works for both heterosexual (often referred to as "traditional" couples in surrogacy) or same sex couples.

Got it?  And that's just barely scratching the surface of everything that needs to be considered before going into a surrogacy arrangement.  Anyway, I hope I have explained the basic process clearly enough.  Please let me know if you have any questions or if I need to clarify something!