Gestational surrogacy describes the clinical situation where the woman carrying the pregnancy is not actually genetically related to the baby that is growing in her uterus. However, traditional surrogacy refers to the situation where the egg is actually from the woman who is carrying the pregnancy. This pregnancy may have been initiated through IUI or IVF and the intent is for the woman carrying the baby to give the child to the intended parents following delivery.
The laws in many states do not permit traditional surrogacy. The rationale for this restriction is that, following delivery, the surrogate may elect to keep the baby and she would be legally allowed to do so. In general, the courts have determined that parental rights are based upon genetics, anatomy and intent. In gestational surrogacy, the carrier is not genetically related to the baby and the intent was for her to give up the baby to the genetic parents. So, even though she was carrying the baby, the courts have historically upheld the agreement. In traditional surrogacy, the surrogate contributed the egg and the womb. So, in spite of a legal agreement among all parties, the court will usually award parental rights to the surrogate because she has 2 of the 3 aspects of parental rights.
Many clinics will not participate in traditional surrogacy arrangements because of these legal issues. Individuals and couples interested in traditional surrogacy are urged to seek experienced legal advice. Lawyers practicing family law have been known to state that REs make babies but family lawyers make families.