If you think surrogacy is a modern marvel, you’d be surprised – it’s been practiced in some capacity since biblical times. While it has not always been documented or perceived in a positive light, it has evolved into a legitimate, legally sound and increasingly popular means of building a family.
At least as far back as the book of Genesis, traditional surrogacy has been utilized to overcome infertility. The Bible references two of the first intended parents: Sarah requested her handmaiden carry her husband Abraham’s child, which she then raised as her own. While traditional surrogacy was seen as taboo – the children were often considered illegitimate because they were conceived naturally – that didn’t stop it from being an accessible option for those desperate for a child. It continued this way, most often in secrecy, until the late 20th century.
Because surrogacy arrangements were typically kept quiet, there were rarely any legally binding agreements. The surrogate, who was also the biological mother, could and did sometimes decide to keep the baby.
It wasn’t until 1976 that the first surrogacy agreement was put into place. The surrogate didn’t receive any compensation, but it set the early framework for legal protections for both the surrogate and intended parents.
By 1980, contracts that called for surrogate compensation were being established. While the original surrogacy contracts weren’t as robust as they are now, it was a step in the right direction toward more regulation in a highly emotional and hotly debated process.
The history of surrogacy in the United States changed rapidly after the first successful IVF embryo transfer – Louise Brown was born in the UK in 1978, ushering in a whole new and extremely modern way for infertile couples to have a family.
Just a few short years later, in 1982, the first baby conceived via egg donation was born.
By 1985, doctors combined the two innovative procedures and the first attempts at gestational surrogacy were made. It was a remarkable time in the history of assisted reproductive technology, but it was truly just the beginning.
While it was an exciting time, it was also a very tumultuous period in the history of surrogacy in the United States.
The legalities of surrogacy fought to keep up with the technology, and the most dramatic example of this was a New Jersey custody battle that began in 1986. It all started when a traditional surrogate, who had signed a contract with the intended parents, decided to forgo the $10,000 and keep the baby girl.
Known publicly as Baby M, the child was in custody limbo for two years until the New Jersey Supreme Court ruled that the surrogacy agreement was illegal. While the intended father ultimately received custody, the surrogate received visitation rights and the state decided to outlaw surrogacy – a ruling that was in place until 2018’s New Jersey Gestational Carrier Act.
It was a dark period in surrogacy history, but it was also extremely educational – the need for proper screening, support for both the surrogate and the intended parents, and the establishment of solid legal contracts all became much more clear. More states began to examine surrogacy arrangements, and legislators began to establish new ways to protect intended parents. This is typically seen in the form of pre-birth or post-birth orders, depending on the state.
Today, more and more states are establishing regulations to support safe, legal gestational carrier arrangements. Reputable agencies with longevity and experience are available to support both intended parents and gestational carriers, creating a smoother process for everyone involved.
It’s an exciting time for modern family building; here at ConceiveAbilities, we are ready to guide you every step of the way.