§ 5.3 Gestational Surrogacy

• Library: Assisted Reproductive Technology: A Lawyer's Guide to Emerging Law and Science (ABA) (2018 Ed.)

§ 5.3 gestational surrogacy

Gestational surrogacy involves a woman who carries an embryo or embryos created from the gametes of others, for intended parents (who may or may not also be the genetic parent or parents), with the end result that the surrogate gives birth to a child or children to whom she has no genetic connection.

In gestational surrogacy cases, the woman who gives birth is genetically unrelated to the child.⁸ There are several variations of gestational surrogacy. In some cases, a woman's ova are retrieved and fertilized in vitro with the sperm of her husband or partner.⁹ Any resulting embryos are then transferred to the uterus of another woman for gestation. Thus, gestational carriers may be used when the woman of a married couple has viable eggs but cannot carry a child to term. Gestational carrier arrangements enable an infertile couple to maintain a genetic connection to the resulting children when their own gametes are used to produce an embryo that is transferred to the womb of the gestational carrier, who may be someone related or unrelated to the intended parents.

Another variation of gestational surrogacy uses gamete donation, producing the embryo for the intended parents using the gametes from only one of the intended parents along with donor gametes to form the embryos. Any resulting embryos are transferred into a gestational surrogate for implantation and gestation. Such a variation is appropriate when either intended parent is unable to produce viable gametes, and unable to carry a child to term.

Another variation is gestational egg and sperm donor surrogacy, in which the embryos are entirely created from donor gametes. This is clearly distinguished from the child being conceived using the gamete of at least one of the intended parents. This variation remedies a situation in which neither intended parent produces viable gametes. Technology now also includes the possibility of altering donor eggs to include the intended mother's genetic material.¹⁰ This technology would create the possibility for an entirely infertile intended mother to establish some genetic connection to any resulting child. In addition, a woman's otherwise nonviable ova can become viable through autologous germline mitochondrial energy transfer, a procedure by which mitochondria from the intended mother's cells is harvested and injected into the ova.¹¹

In some jurisdictions, gestational carriers may be required to give up parental rights to the child to whom they gave birth.¹² In those jurisdictions, adoption proceedings may not be necessary following the birth of a child born to a gestational carrier,¹³ but still advisable. Post-birth adoption may also be advisable even when the gestational carrier is related to one of the intended parents (technically making her genetically related to the child she bears)...