University of California San Francisco
Director, Third Party & LBGTQ
RMA of Northern California
Reproductive Fertility Specialist
Law Office of Brian Esser
The gestational surrogacy process varies depending upon numerous factors, but in countries where it’s legal and compensation is permitted, we think of the process as following roughly 8–10 steps.
The first step in the surrogacy process is to consult with your local authorities, clinicians, or attorneys to determine what’s legal, plausible, and financially covered in your region.
The answers may depend upon your reasons for considering gestational surrogacy, your sense for whom the surrogate will be, timelines, questions of parentage, and more.
Should you proceed forward, a next step is to think through how you’ll find someone prepared to be your gestational carrier. In the case of “altruistic surrogacy”, this may be a friend or family-member who’s been qualified by your doctor and theirs to carry a pregnancy.
In regions where gestational carriers can be compensated, there’s often a deeper pool of people prepared to be a carrier whereby intended parents often have to find, meet, and screen candidates.
“Independent” surrogacy is when the intended parents take the search process upon themselves, which may save substantial costs but also create an enormous organizational and emotional burden. Often intended parents who are part of a broader community that pursues surrogacy (e.g. gay couples, or those with a diagnosis that requires surrgacy) will draw upon the wisdom and network of friends and consider the independent surrogacy option more closely.
Alternatively, intended parents can work with third parties. Agencies and some fertility clinics will help facilitate a match. Thereafter, “large, full service” agencies help coordinate and interface with doctors, lawyers, psychologists, insurers, and the gestational carrier on your behalf. Smaller “solo practitioner” agencies may provide a subset of those services.
Larger agencies tout their bigger staffs, built-in redundancy, systems, processes, and professional liability insurance as signs of their professionalism and reliability.
Solo practitioner agencies market the fact the agency’s owner will handle your case personally, and you’ll incur lower costs (attributable to lower overhead) with a more intimate approach.
If one chooses to work with an agency, often a small up-front payment is made to initiate the search process, and thereafter, payment is made upon milestones (e.g. successful match, signed contracts, confirmation of a viable pregnancy).
Ultimately, many intended parents believe it’s important to trust your instincts when interviewing an agency—how they “show” and treat you in the first interview is an important signal. Many intended parents view their selection of the agency as “the one thing they get to choose in this process” because thereafter, in many ways, the gestational carrier chooses you.
In many countries, agencies are businesses and like most businesses, the tendency is to expend as little effort on each client as possible without imperiling the sale. It’s important to select an agency where you’ll be heard if you want them to adapt their approach.
When intended parents choose to work with an agency, it can be 3–6 months before they start meeting candidates (often via virtual meeting) and get matched. Many patients comment that the delay can give them needed time to get comfortable with the concept of surrogacy.
Once a “match” is made, often a second payment is made to the agency. The speed at which a match is made tends to be a function of the:
There are a variety of criteria both intended parents and gestational carriers tend to evaluate but most hew to a few basics: interpersonal fit and trustworthiness, health, stability of home life, level of involvement during pregnancy, pregnancy and medical decisions, and compensation.
Both intended parents and carriers (and their spouse, if there is one) try to gauge whether this is someone they like, who’s judgement they can trust, and if complexity arises, whether they’ll be able to rationally and quickly arrive at a good, sensible solution.
Gauging “fit” should involve all parties,including any partner of a carrier, as multiple people are often called upon to share the work, make sacrifices, communicate, arrange for appointments, submit to evaluations, and more.
It’s common for intended parents to focus on the lifestyle a gestational carrier leads and to consider their dietary and exercise habits and look at proxies like body mass index.
The gestational carrier’s lifestyle and habits will play a role in the pregnancy and the child’s life thereafter. Many intended parents say they “incessantly” wondered about the surrogate’s habits during pregnancy. Most will tell you it’s important to try to match with a carrier whose relationship to food, exercise, applying beauty products, and health generally align with yours.
Pregnancies are delicate, upheaval can create challenges, and so intended parents want to know the gestational carrier leads a predictable lifestyle within a highly-stable home. Since many gestational carriers have multiple responsibilities (e.g. often looking after their own families and careers), intended parents often want to see a support system in place (e.g. spouse, partner, parents) who can help alleviate burdens as they arise.
Many intended parents have trouble assessing the strength of the support system around the prospective gestational carrier. It’s common for carriers to be unpartnered, and while some intended parents are comforted hearing “my mother’s just down the street”, others want that support system to be inside the home.
Likewise, gestational carriers want to know the child they're carrying will go home to a loving, stable, and nurturing environment. We should point out some carriers are less-inclined to work with an intended parent or parents who are unpartnered, transgender, or in a same-sex relationship. Naturally, this is a first order issue to be pre-screened if it applies.
A major (unforeseen) source of tension can be the degree to which intended parents expect to be involved during the pregnancy. It’s common for intended parents to want to see themselves as “hands off” or attempt to come across that way. The reality is often somewhat different.
Intended parents may want updates on how the carrier is feeling, movements and progress on the baby, travel plans (especially if those plans involve crossing borders or state lines), weight gain or loss, any signs of anxiety, depression, or tension at home or at work.
In an effort to attract a gestational carrier, it’s common for intended parents to want to portray themselves as “caring but laid back”. Experts say this is both common and ill-advised if it isn’t a reflection of who they are and what they’ll need in this process.
Likewise, it’s common for gestational carriers to think “I don’t need constant affirmation”, and yet many find themselves wishing the intended parents seemed a little more grateful, enthused, or emotionally vested in the process. Some intended parents are told to do this through gifts and flowers, and yet many gestational carriers find the more subtle, less overt gestures to be the most fulfilling.
It’s critical to establish a shared vision for the cadence of communication, the nature of communication, when the intended parents will come by for visits, join doctors appointments, or receive updates. Gestational carriers and intended parents alike say this is a relationship that needs to be built and, whenever the opportunity presents itself, continually reinforced.
Ferreting out if all parties (e.g.including spouses) can get on the same page is critical, as is being able to adjust when the situation changes.
Intended parents and gestational carriers need to make a number of medical decisions together including: how many embryos to transfer, where the child will be delivered, and what should be done should complications arise that pose a risk to the gestational carrier or child. Nearly every societal recommendation insists these decisions are the gestational carrier’s to make and so intended parents want to know how they’ll consider each circumstance.
Another common discussion will be whether a carrier is prepared to have multiple embryos transferred at once, and depending upon the nature of the embryos, face the prospect of carrying twins or triplets.
Carrying a “multiple gestation” birth is often more uncomfortable for the gestational carrier and dramatically raises the risks to both them and to the offspring, as you can see in the data below.
That said, multiple embryo transfers are more common with surrogacy for a few reasons.
For one, intended parents are fearful if a transfer doesn’t work, their gestational carrier may not be available or open to trying another transfer. Indeed, failed transfers tend to be hard on everyone involved, and it can take time thereafter for people to re-group and consider next steps.
Secondly, the cost of surrogacy is substantial, and many intended parents hope the time and effort can provide “two for one”—bringing them a step closer to “completing their family”.
Finally, each partner in a same-sex couple may want to have a biological connection to one child, requiring use of multiple embryos.
We have an extremely detailed course on the nature and decisions involved with the embryo transfer, including drawing important distinctions between “cycles” and “transfers”. We suggest you take a look here.
Once the intended parents and gestational carrier feel there's a good match, the next step is to have the gestational carrier screened by the intended parent’s fertility doctor.
The doctor will review the candidate’s family health history, medical profile, and previous delivery history, as well as any information that can indicate if she’ll be able to carry in healthy fashion.
If cleared by the intended parent’s doctor, the gestational carrier (and oftentimes family) will often undergo a psychological assessment to determine if they understand the nature of the process, the challenges it will present, and the implications of moving forward.
Often, if a gestational carrier does not pass screening, an agency will begin the search process again for no additional cost. Contingencies for circumstances like this need to be spelled out clearly in any contract between the intended parents and an agency.
Thereafter, both intended parents and the gestational carrier should have their own attorneys draft documents that clearly spell out factors that include:
The reality is this step can take months and the discussion, negotiation, drafting and proof-reading can drag on. Often not until a term is highlighted in a contract will it occur to one party or another it needs examining and elaboration.
Typically, once contracts are signed, this is when larger sums of money get moved into an escrow account for drawdown by the agency, gestational carrier, and others.
Once documents are finalized, the gestational carrier will eventually undergo an embryo transfer. This may be merely the capstone of a previous IVF cycle (egg retrieval, fertilization, and embryo development) or require a completely new cycle. For a full rundown of the IVF process, see our course here.
If frozen embryos are available, there is more flexibility around when the transfer will happen. If fresh embryos are being used, then the egg retrieval and transfer need to be closely coordinated.
Also, in a subsequent lesson, we’ll discuss some of the major IVF-oriented decisions in the context of patients pursuing gestational surrogacy.
When it’s ultimately time to transfer, the gestational carrier may travel to the clinic of the intended parent’s choice or embryos can be frozen and shipped to a local clinic for transfer.
We should point out that even with the highest quality embryos (created from donor eggs), the odds any given transfer to a gestational carrier will work can still amount to a coin flip (40–60%), as you can see in the data below.
As we mentioned, failed transfers are often devastating for everyone involved, and it can be months before intended parents or a carrier are prepared to try again.
The odds any given embryo will lead to a live birth is multifactorial and we have dedicated lessons on each, as you can see below. Success rates tend to be a function of:
Eight to nine days after the transfer, the gestational carrier will return to the clinic to see if their hCG ("beta") levels are rising. If the hCG number is above zero, it means a pregnancy has taken hold. If the rate of hCG continues to climb, depending on the rate, it reflects an increased odds the pregnancy will be viable.
Intended parents and carriers are often told that a doubling of hCG levels every two days indicates a viable pregnancy, but we’ve yet to find the study that reflects this, and doctors tell us that they often see women who did not have “doubling betas” continue to remain pregnant and deliver.
If a woman receives a “positive beta”, the odds she delivers a baby are about 70% to 80%. One well-run study looked at how the odds of a delivery varied after every weekly milestone and, as you can see, by the time the doctor can see a fetal heartbeat (typically 1–2 months after the transfer), the risk of miscarriage dramatically falls and steadily decreases with each passing week.
If a heartbeat is seen, the transfer officially led to a “viable pregnancy” whereby the agency (if one is used) will receive another tranche of money, the gestational carrier will start seeing a local OBGYN (often one who works with high-risk pregnancies, if appropriate), and work begins to finalize health insurance details, if they’ve yet to be finished by that point.
In many countries, a gestational carrier and the offspring both need health insurance as they access the medical system.
More recently, private health insurance policies have been written to exclude coverage if a pregnancy was conceived via surrogacy or for compensation. In some cases, insurers will seek to place a lien on that compensation if the delivery drives excess expenses. In our experience, attorneys and agencies often have a grasp on how various insurers view (and create exclusions and penalties for) gestational carrier births.
As we alluded to earlier, private health insurers are particularly worried about surrogacy because as recently as 2016, multiple embryos would often be placed in a single-transfer during surrogacy. The cost of delivery goes up substantially in the case of twin-or-triplet pregnancies because they’re often born prematurely and require resources from the Neonatal Intensive Care Unit (NICU).
In some countries, intended parents can buy specialty insurance (e.g. from Lloyd’s) where the policy is written with surrogacy in mind. Often, the deductible is substantially higher than a typical insurance policy (because the carrier knows they’ll be paying for a major medical expense soon) and can become ever more costly depending upon how many embryos will be transferred or how many heartbeats are seen on ultrasound.
Around 18 weeks after the transfer, the second portion of the legal process often begins whereby the intended parent(s) and gestational carrier draft documents to ensure the gestational carrier is not recognized as the soon-to-be-born child’s parent and that all intended parents are recognized.
This process can take weeks, and most times, documentation can be provided should the delivery come before the matter is finalized.
Generally speaking, surrogacy pregnancies are more likely to deliver early. This tends to be a function of surrogacies more often involving multiple-embryo transfers, and thus, are more likely to result in twins or triplets (“multiples”) than pregnancies that don’t involve a surrogate.
Regardless, as you can see below, carrying multiples (regardless of who is carrying) changes the odds of a preterm delivery from being possible (10%–15% of deliveries) to being probable (60%–70% of deliveries).
The gestational carrier and intended parents are often on standby after 26 weeks into the pregnancy, though most deliveries will come after 30–35 weeks.
Given this, many intended parents insist a gestational carrier delivers at a facility with a well-respected NICU should the offspring need help post-birth.
In most cases, gestational carriers and intended parents iron out beforehand a “hospital plan” or “birth order” that specifies who will be present and playing what role during this time.
Details can include decisions like:
The delivery is often an emotional period that’s prone to surprises and clear communication can be sparse: this is why building a thorough hospital plan is critical.
Many intended parents think it was wise to set up time to do a “hospital tour” well before the birth. Some hospitals have a well-established plan for where intended parents wait during the delivery, and where they’ll stay once the child is delivered.
It’s common for intended parents to be given a separate tour from other pregnant patients. For some this can be upsetting and make them feel left out, “less than” or touch upon sensitivities related to how others perceive them in this process.
After the delivery, some intended parents are allowed to stay on the delivery floor or even in a room adjacent to the gestational carrier. In other cases, and often less ideally, intended parents are given a room on another floor, and some say that can be a challenging experience. When possible, it may make sense to advocate early to be in the part of the hospital you are likely to prefer.
Ultimately, when the hospital clears the child(ren) to leave, they’ll go home with the intended parent(s), and thereafter, there may be more perfunctory legal work.
At home, those first few weeks can be challenging for intended parents. Many think the parents who carried were somewhat better suited to manage and cope with the adjustment.
The period of bonding with the baby can happen at different times and in different ways. For some, it happens instantly and for others, it can be more gradual. As we alluded to earlier, most data shows the level of bonding and love between parent and child is no different in the case of gestational surrogacy than other deliveries.