Surrogacy is when a woman or person carries a baby for a couple or an individual who can’t conceive on their own. The overall concept may seem modern, but it has been around since ancient times. Still, the process, particularly the gestational surrogacy process, looks much different today than in the past and has evolved into an ethical, legal, and supportive experience for intended parents and surrogates.
In this post, we’ll explain the rich history of surrogacy and how it has grown over time. If you’re ready to learn more about starting your surrogacy journey as a surrogate or intended parent, reach out to us at Creative Family Connections.
Traditional surrogacy is when a donor or the intended father’s sperm artificially or naturally inseminates the surrogate’s egg, making the surrogate the biological mother.
Before the development of artificial insemination and assisted reproduction technologies, traditional surrogacy done the “natural way” was the only option for giving a child to couples who couldn’t conceive. Today, it could be seen as a taboo process, since it required an extramarital sexual encounter. There were also no laws to protect all parties at that time, unlike how surrogates and intended parents are protected today.
Though traditional surrogacy can now occur through artificial insemination, it is much less common than gestational surrogacy, thanks to IVF advancements. Traditional surrogacy is even illegal in some states. Traditional surrogacy can be emotionally and legally challenging for the surrogate and the intended parents, since the surrogate has a genetic tie to the child.
Despite its disadvantages, traditional surrogacy has impacted history and paved the way for the development of gestational surrogacy. Today, same-sex intended parents, infertile couples, and single parents often use gestational surrogacy to have biologically related children.
When did surrogacy begin? How long has surrogacy been around? The practice started thousands of years ago, tracing back to the Babylonians, who permitted surrogacy to prevent divorce. However, you’ll find the first known recorded description of surrogacy in the Book of Genesis with the story of Sarah and her husband, Abraham. Sarah experienced infertility, so she asked her servant Hagar to carry Abraham’s child. Abraham impregnated Hagar, and she gave him and Sarah a son named Ishmael.
There’s more from the Book of Genesis — the story of Rachel and Jacob. Like Sarah, Rachel could not conceive. She told her husband Jacob to go to her maid Bilhah so that she could “have children through her.”
Though Sarah and Abraham’s story represents the first surviving recorded description of a natural “surrogacy,” traditional surrogacy completed through artificial insemination did not arrive, of course, until much later.
In the 1770s, the first successful artificial insemination took place. It happened with a patient who experienced infertility resulting from a rare congenital defect that affects male infants called hypospadias. Dr. John Hunter instructed the patient to inseminate his wife using a syringe, which led to a successful pregnancy.
Artificial insemination did not become common until donor sperm became more widely available. The first American sperm bank established for infertility purposes didn’t open until 1964. During the 1970s, the sperm bank industry became popular in the United States, helping single women and couples conceive.
Attorney Noel Keane drafted the first surrogacy contract in 1976 for traditional surrogacy. Events that led to the contract started in the ’70s when a California couple advertised for a woman to carry a child through artificial insemination. A woman responded to the ad and agreed to carry their child in exchange for a $7,000 fee and $3,000 in medical and legal costs. Soon, the news of this arrangement spread across the country, prompting a Michigan couple to ask Keane for help finding a surrogate and working out a similar contract.
Looking for assistance writing the contract, Keane turned to a judge for an opinion. A judge told Keane that it wasn’t illegal for a surrogate to be inseminated, carry a child to term, and give up her parental rights upon birth. It was also perfectly legal for the intended parents to pay medical expenses related to surrogacy. However, Michigan’s laws could make it illegal for the intended parents to pay a fee to the surrogate for carrying the child. At the time of this writing in 2022, Michigan’s laws do not favor surrogacy and CFC is not able to accept surrogate candidates who live in Michigan. Surrogacy contracts are void and unenforceable in Michigan, and those involving compensation to a surrogate are subject to criminal penalties.
Though Keane continued working for couples hoping to start families, he was unhappy about the ban on surrogate compensation. Eventually, he sent clients to Kentucky, which did not prohibit surrogate payment.
In the early 1980s, there still were no laws in the United States clearly outlining the permissibility of surrogacy arrangements. These circumstances changed with the Baby M. case, which lasted from 1986 to 1988.
The Baby M. case was a custody dispute between William and Elizabeth Stern, the intended parents, and Mary Beth Whitehead, the surrogate. Whitehead agreed to be a traditional surrogate for the couple and give up her maternity rights once the baby was born.
She also agreed to name William Stern on the birth certificate as the baby’s father and allow the intended parents to name the child. But, when Whitehead gave birth, she included her husband’s name on the birth certificate and named the baby without involving the Sterns.
Since the birth certificate did not list William Stern, he legally had no right to claim custody of the child. Whitehead refused to give the child to the Sterns, so they went to court.
First, a New Jersey judge found their surrogacy contract enforceable and terminated Whitehead’s parental rights. Then, Whitehead appealed, and the New Jersey Supreme Court determined the agreement was unlawful because it violated adoption laws that prohibit compensation for children. Whitehead regained her rights, but William Stern received full custody to serve the child’s best interests.
The Baby M. case shone a national spotlight on traditional surrogacy and the associated legal risks, demonstrating a reason for states to develop surrogacy laws. Finally, the Baby M. case highlighted a need for surrogacy agencies to properly screen surrogates, offer clear legal contracts, and provide adequate support to intended parents and surrogates.
The federal government does not regulate surrogacy, so legality depends on the state. For example, surrogacy agreements are void and unenforceable in Indiana and Michigan. In Indiana, some courts will still grant pre-birth parentage orders despite the contract’s un-enforceability, but it is important to proceed with caution. Some states, like California, allow surrogacy and compensation for the surrogate explicitly through statute and case law. Lastly, several states are silent regarding surrogacy, meaning they have no laws permitting or prohibiting surrogacy.
Virginia and New Hampshire became the first states to enact statutes permitting surrogacy in the early ’90s. If you are curious about surrogacy laws in your state, check out our US Surrogacy Law Map. Remember that intended parents can live anywhere in the United States and many countries abroad, whereas surrogates must live in a surrogacy-friendly state. To avoid legal issues, surrogacy attorneys must carefully consider the surrogate match between a surrogate and appropriate intended parents.
In 1980, a woman under the pseudonym Elizabeth Kane became the first compensated surrogate “mother.” She received $10,000 for a successful, healthy delivery.
Advancements in assisted reproduction technology have made another type of surrogacy possible — gestational surrogacy. Gestational surrogacy involves in vitro fertilization, using eggs and sperm from the intended parents or donor(s). A doctor then transfers the fertilized eggs to the surrogate’s uterus to start the surrogate pregnancy.
Unlike traditional surrogacy, gestational surrogacy means the surrogate is not biologically related to the child. In the United States, around 750 babies are born every year from gestational surrogacy.
The first ethically completed IVF embryo transfer happened in the late ’70s. It began in 1976 when Dr. Patrick Steptoe and Professor Robert Edwards teamed up to help an infertile couple – Lesley and John Brown – conceive a child. It took several attempts, but by timing it precisely, Steptoe and Edwards successfully transferred an embryo to Lesley Brown. In 1978, she gave birth to Louise Joy Brown, the first baby born from an IVF treatment.
In 1985, the first baby was born from gestational surrogacy treatment. Since then, the interest in gestational surrogacy has grown, and it is now the most widespread surrogacy method. For example, according to the Centers for Disease Control and Prevention, gestational carrier cycles led to the birth of 18,400 infants from 1999 to 2013.
The Johnson v. Calvert case was another attention-grabbing surrogacy case that took place from 1990 to 1993. The case occurred in California and, like the Baby M. case, also involved a surrogate who sought custody of the child she carried. However, there were several critical differences between the Baby M. case and Johnson v. Calvert.
First, unlike the Baby M. case which involved traditional surrogacy, Johnson v. Calvert involved gestational surrogacy whereby the Calverts were biologically related to the Child that Anna Johnson carried and delivered as the surrogate. At the time (and still today), California law permitted a woman to establish maternity if she proved her genetic relation to the child or gave birth to the baby. Lower courts awarded custody to the Calverts as the child’s genetic—and therefore, natural—parents. The California Supreme Court affirmed, holding that birthing a child is not the only way to establish natural maternity; in reaching this conclusion, the California Supreme Court looked the parties’ intention: to grow the Calverts’ family, not to donate an embryo to Anna Johnson.
As a result of the Johnson v. Calvert case, the California Supreme Court became the first state high court to announce that gestational surrogacy contracts do not violate state law or the Constitution. Now, California is one of the most surrogacy-friendly states.
Another difference between the Baby M. case and Johnson v. Calvert is that Johnson and the Calverts made an agreement without an agency’s formal matching or screening process as they were introduced informally via coworkers. In the the Baby M. case, the IVF center found the GC for the intended parents. In other words, Johnson did not undergo formal screening or interviews before agreeing to be a surrogate. If she had received a psychological and medical evaluation before the procedure, she and the Calverts could have made more informed decisions about the surrogacy journey.
In sum, below is a timeline of the history of surrogacy in the U.S. and the developments that made gestational surrogacy possible today.
Here are some notable events that took place more recently in the world of surrogacy and IVF.
Laws regarding surrogacy and parental rights are constantly evolving. And, as mentioned earlier, these laws vary significantly from state to state, which can get confusing.
Still, if you’re interested in surrogacy or becoming a surrogate, it’s critical to familiarize yourself with different state laws. To help you get started, visit our US Surrogacy Map for a list of surrogacy-friendly states.
Though our headquarters are in Maryland, we work with surrogates all over the country and intended parents all over the world. So, it makes no difference whether you’re hoping to start a family in Oregon, North Carolina, or anywhere in between — we’re here for you!
The concept of surrogacy has been around long before the 21st century. Thanks to the progress made in medicine and assisted reproduction technology, everyone can build a family.
Whether you’re coping with infertility, are ready to be a single parent, or are a member of the LGBTQ+ community and can’t wait to have children, gestational surrogacy allows you to become a biological parent. The first step to starting your journey is to contact a reputable and supportive surrogacy agency.
At Creative Family Connections, we are more than a surrogacy matching agency. We are also a law firm and will take care of all the legal details for you, so you, your partner (if you have one), and your surrogate can have a beautiful, stress-free journey. To learn more about our process and how we support intended parents and surrogates from beginning to end, please contact us today.