5 Questions You Were Afraid to Ask About Surrogacy

pregnant woman with bow
Choosing a surrogate to deliver your child is a personal decision. Just remember it's a business partnership with contractual obligations.

Surrogacy is a hot topic, and when you consider the variables involved, the controversy is understandable. When you bring another human into your birth experience, you have a separate set of opinions, objectives and emotions to consider in addition to your own.

Though using a surrogate to expand your family is a very personal decision, you're entering into a business partnership, and all aspects of the surrogacy need to be contractually outlined. If they're not, you'll be unprepared should something go wrong. It's important to find a reputable agency to help pair you with a surrogate that's a good fit, as well as an experienced lawyer who knows the ins and outs of surrogacy legalities.


If you're considering surrogacy, here are five questions that may have come to mind, but that you've been afraid to ask.

5: If the surrogate mother miscarries, does she still get paid?

Surrogacy agreements usually have several different payment structures from which to choose: a monthly payment throughout the pregnancy, a larger payment every trimester or a lump sum at the end of the pregnancy.

But what if something bad happens? When something goes wrong, the pregnant surrogate is most often not at fault, and you are obligated to satisfy your contractual agreement. If the surrogate mother miscarries, she's entitled to compensation up to the point when she loses the child. This includes prorating the fee during the month of the miscarriage. If the pregnancy comes to a devastating end and the child is stillborn or dies shortly after birth, the surrogate is still entitled to full compensation.


4: Do agencies screen all potential surrogates?

A good surrogacy agency has a highly detailed screening process for both surrogates and intended parents. The goal is to find a good match for both parties. So the real question here is how you find a reputable agency. And the answer is intensive research.

Agencies not only provide you with the best surrogate candidates, but they also control all of the money you pay the surrogate and will serve as a mediator if any problems arise. The best way to find a good agency is to ask someone you know who has already been through the surrogacy process. If this information isn't available to you, narrow it down to agencies that seem to be a good match and ask for references. Then be sure to check them all.


3: What if the surrogate decides to keep the baby?

There are two types of surrogacy: In a traditional surrogacy, the surrogate uses her own egg, and in a gestational surrogacy, the egg is implanted.

With gestational surrogacy, the surrogate has no genetic tie to the child. This means that when the intended parents fulfill their contractual obligations, the surrogate mother has no legal claim to the baby. For this reason, gestational surrogacy agreements are highly recommended, and in some U.S. states, it's actually illegal to hire a traditional surrogate.


2: Is surrogacy legal?

One of the reasons surrogacy is so controversial is because it deals with life and, potentially, death -- two things on which few states can reach agreement. Some states have no surrogacy laws at all, and some prohibit surrogacy within their state lines. Some states will only permit surrogacy where there is no financial compensation, and some mandate that the surrogacy is gestational -- no traditional surrogacy allowed.

What this means for anyone considering surrogacy is that you can draw up the tightest contract in the world, but you may have a hard time finding a judge to uphold it if a disagreement arises. The one thing most lawyers agree on is that the surrogate mother must live in a state where commercial surrogacy isn't prohibited. Massachusetts and California are two states with the most favorable surrogacy laws.


1: What if a surrogate decides to abort?

Before selecting a surrogate, you need to make sure that her values match up with yours. If you're morally or religiously opposed to abortion, it would behoove you to make sure your surrogate is, as well.

Unfortunately for the intended parents, the surrogate has the exclusive legal right to abort a fetus. But if this is a breach of contract, she may be forced to refund her compensation. You should clearly outline how to handle this issue in the contract, but know that it may be difficult to find a court that will uphold contractual obligations in the case of abortion.


At the end of the day, a woman's right to choose also applies to surrogates.

Lots More Information

Related Articles


  • Center for Surrogate Parenting, Inc. "Typical Surrogate Mom Profile." 2010. (Sept. 23, 2010) http://www.creatingfamilies.com/SM/SM_Info.aspx?Type=131
  • The Fertility Institutes. "Surrogacy Solutions: Frequently Asked Questions About Surrogacy." 2010. (Sept. 16, 2010) http://www.fertility-docs.com/surrogates_faq.phtml#4
  • Information On Surrogacy. "Abortion & Selective Reduction Issues in Surrogacy." 2010. (Sept. 16, 2010) http://www.information-on-surrogacy.com/selective-reduction-issues.html
  • Information On Surrogacy. "How Surrogate Mothers are Paid." 2010. (Sept. 16, 2010) http://www.information-on-surrogacy.com/how-surrogate-mothers-are-paid.html
  • Northeast Assisted Fertility Group. "Fees." 2010. (Sept. 22, 2010)http://www.assistedfertility.com/faqs/fee.shtml
  • Northeast Assisted Fertility Group. "Surrogacy Frequently Asked Questions." 2010. (Sept. 16, 2010) http://www.assistedfertility.com/faqs/faq-surrogacy.shtml
  • Saletan, William. "Fetal Foreclosure: If you stop paying a surrogate mother, what happens to the fetus?" Slate. March 24, 2009. (Sept. 16, 2010) http://www.slate.com/id/2214498/
  • The Select Surrogate. "Surrogacy Laws by State." Jan. 24, 2010. (Sept. 22, 2010) http://selectsurrogate.com/surrogacy-laws-by-state.html