Traditional vs. Gestational Surrogacy: What are the Differences?

By: John Whitbeck

[09.25.2020] Surrogacy is an assisted method of reproduction that can help prospective parents start a family when they are struggling or unable to get pregnant. When it comes to surrogacy, there are two main types: traditional surrogacy and gestational surrogacy.

Traditional Surrogacy

Traditional surrogacy involves the surrogate woman using her own egg, which is inseminated with the intended father’s or donor’s sperm. This means she is the biological mother of the child. This method is less common than gestational surrogacy due to the legal and emotional factors involved: the surrogate has to sign over parental rights to the intended parents following the labor and delivery process.

Traditional surrogacy is much more complex than gestational surrogacy. When considering this option, it’s crucial to work with a very knowledgeable Virginia family law attorney who is skilled with traditional surrogacy contracts and agreements.

Gestational Surrogacy

With gestational surrogacy, the surrogate is not biologically linked to the baby. The intended mother goes through in vitro fertilization (IVF) to create embryos, which are then transferred to the surrogate. In some instances, there may be an egg donor as well. At least one party of the couple commissioning the gestational surrogacy is the biological parent.

Main Differences in Surrogacy Types

The most common difference between the two types of surrogacy is typically where the egg comes from. In gestational surrogacy, an egg donor is usually used. In traditional surrogacy, the surrogate uses her own eggs; she is essentially both the donor and the carrier.

Medical procedures utilized in each surrogacy differ. In vitro fertilization (IVF) is used with gestational surrogacy, which creates the embryo that is implanted into the surrogate. Artificial insemination is typically used with traditional surrogacy, but IVF may be an option in some cases.

The waiting time can vary due to the complexities surrounding traditional surrogacy. In some cases, finding a willing surrogate can be a cause for delay. Legal processes also add to the time frame, making it a much lengthier process than gestational surrogacy.

One should expect the costs of gestational surrogacy to be higher due to the difference in medical procedures. The cost of gestational surrogacy is more than that of traditional surrogacy due to medical procedures such as egg donation, fertility treatments, and IVF; IVF being the most costly.

Surrogacy in Virginia

In general, the laws surrounding surrogacy in Virginia are extensive and complex, with an entire chapter of the Code of Virginia devoted to the topic. Virginia Code §20-156 through §20-165 deals with “Children of Assisted Conception.” While both types of surrogacy are permitted, in some instances there may be strict conditions that must be met. In Virginia, only married couples are eligible. For unmarried couples, only the genetically related individual can be listed on the birth certificate; the other individual would likely have to legally adopt the child to assert parental rights.

If you’re contemplating surrogacy, it’s best to meet with a qualified Virginia surrogacy attorney before starting the process. The team at WhitbeckBennett is very skilled with surrogacy contracts and issues surrounding the process in the state. To schedule a confidential consultation, call WhitbeckBennett at 800-516-3964 or email clientservices@wblaws.com.


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