Have you ever wondered what the difference is between gestational surrogacy and traditional surrogacy? The surrogate’s genetic contribution is the distinguishing factor between the two classifications. In traditional surrogacy arrangements, the surrogate contributes her egg and is therefore genetically related to the child she is carrying. The intended father supplies the sperm. In contrast, the surrogate has no genetic link to the child in a gestational surrogacy arrangement.
Gestational surrogacy is the newer of the two categories and was first reported in 1985. Gestational surrogacy involves the surrogate mother carrying an embryo created from the genetic material of one or both of the intended parents. If an intended parent is unable to supply their genetic material, they will utilize donor egg or sperm. Gestational surrogacy is considered legally safer than traditional surrogacy, because the child has no biological relation to the gestational surrogate. Gestational surrogacy also poses fewer hurdles to the establishment of legal parentage due to the biological connection between the intended parents and the child.
The shift from traditional surrogacy towards gestational surrogacy was propelled by the Baby M case decided by the New Jersey Supreme Court in 1986, where two families “f[ought] over a baby who belonged to both of them.” In Baby M., the surrogate refused to return the child, born through traditional surrogacy, to the biological father and his wife. The embryo was created using the biological father’s sperm and the surrogate’s egg. The intended parents sued to relinquish the surrogate’s parental rights and sought to establish legal parentage in the biological father’s wife. However, the New Jersey court ruled that the surrogate was the child’s legal mother. The use of traditional surrogacy declined following the outcome of Baby M. Courts’ inclination to establish legal parentage due to the genetic link and the accessibility of reproductive technology popularized gestational surrogacy.