Traditional (artificial insemination) Surrogacy
An arrangement between an intended father and/or intended mother and a woman who agrees to undergo artificial insemination with sperm from the intended father. The surrogate's egg is used and she is inseminated at the time of ovulation during her normal menstrual cycle. The intended mother then does a step-parent adoption after the birth of the child. At this time the surrogate relinquishes parental rights to the child and the wife and father will establish hers. This generally applies in a similar manner with gay partnerships.
Gestational (embryo transfer) Surrogacy
A woman agrees to carry the embryo(s) of the couple. The embryo is made up of sperm from the intended father and the egg of the intended mother. This enables the surrogate to carry a child that is not genetically hers. The surrogate's role is that of a gestational carrier or host uterus for the intended parents.
Gestational surrogacy may also be accomplished using a donor egg or sperm (an egg donated by a woman to be fertilized by IVF using the intended father's sperm) or visa versa. This too would enable the surrogate to carry a child that is not genetically hers, but is genetically related to the intended parents or parent. Or the intended parent(s) may accomplish this by using embryos donated by others who might have cryopreserved embryos that the donor will not be using for themselves, yet they want to give the embryo chance of life in a family.
Of course, obtaining the birth certificate, with the correct parentage on it, is the main concern at the end of a gestational surrogacy. This is not a difficult task. But there is no one way to accomplish this task. Information may be correct for one hospital, or for one hospital administrator, or for one situation, and not for another.
Where the baby is born dictates which state will issue the birth certificate...regardless of where the egg retrieval or embryo transfer procedure was accomplished: or where the intended parents, surrogate, or anybody involved resides.
Surrogacy is still not considered a common method of expanding one's family. Although it became so more and more in the 90's. When the general public thinks about expanding one's family, they generally think in terms of two options - biologically reproducing (the parents themselves) and adoption. Surrogacy is still considered in many segments of the population as being weird, immoral, or worse. Another important consideration is that institutions, such as hospitals, frequently do not have policies in place to address surrogacy. Or if they do, they aren't sufficiently conveyed to the hospital staff. It is likely, for example, that a hospital does not have an in-service training dealing with surrogacy....although they probably all do for adoption. Surrogacy policies and procedures are just recently being developed by hospitals and State Departments of Vital Statistics.
So when your surrogate gives birth , you should approach the situation very gently. The staff may be very nice and helpful. Of course there may be one or two inquisitive people on one of the shifts who think that surrogacy is wrong, or they just don't like what you are doing, or they just feel it necessary to give you or the surrogate a hard time. Under such circumstances, your general demeanor ought to be very accommodating. If someone "gets his or her spine up", that may lead to getting hospital administrators and legal counsel into the mix. The more they get into the mix, the more difficult and costly simple issues of discharge may become.
The birth certificate(s) (gestational surrogacies are frequently twins) is an issue that will need to be finessed with great delicacy. It would be nice if when they bring the birth certificate forms around, your surrogate could simply fill it out with your names in the place for the parents. But the hospital is likely to object...because the baby came out of the surrogate...not you, regardless of what a surrogacy contract says (the hospital doesn't want to be put in a place to adjudicate anybody's parental rights). You will have to go to court. It is unlikely that the State Department of Vital Statistics will change the birth certificate...no matter what we show them...for the same reason the hospital will not do so. You will have to get a court order directing them to change it, or issue the first one reflecting your parentage.
Our firm has been to court for this purpose numerous times. The judges' responses have been so varied that it is impossible to predict exactly what a judge will do. No judge in Maryland has ever dismissed the action...where a judge in another state may do so because the underlying action is surrogacy which is illegal. In Maryland it is not illegal. Sometimes it takes us approximately ten minutes to get the judge to sign the order, and sometimes the judge wants to treat it like an adoption so that he or she can issue an adoption decree which automatically gets the State Vital Statistics people to issue a new birth certificate with the names of the Intended Parents listed as the mother and father of the child(ren).
Basically, we cannot predict exactly what is going to happen on this point. We just keep cool and move toward the objective of getting the child(ren) out of the hospital with you and obtaining a birth certificate which reflects that you are the parents. This is not difficult. We just can't predict which route we will need to follow. We know the beginning and we know the end. It is the middle that always is uncertain. We take each person and each situation as we encounter and move along the line to the ultimate objective.
If you have more questions, just let us know. That is part of what we do, from now until you have your baby in your hands. Look, we recognize what a difficult financial and emotional investment this is. There is no way we can guarantee something that is beyond your control and ours. But we have been down the road many, many times over the past years. We can guarantee that we will give you the best representation and assistance possible as you undertake this incredible journey.
