Traditional vs. Gestational Surrogacy

What is the difference between traditional and gestational surrogacy?

The California Family Code defines each term, and each has different legal implications.

Family Code Section 7960(f)(1): “Traditional surrogate” means a woman who agrees to gestate an embryo, in which the woman is the gamete donor and the embryo was created using the sperm of the intended father or a donor arranged by the intended parent or parents.

In other words, a traditional surrogate is artificially inseminated with sperm provided by an intended parent or a donor, pursuant to a surrogacy agreement signed by the parties. Due to a traditional surrogate’s genetic and gestational link to the child, this type of surrogacy carries legal risk that should be fully understood before pursuing such an arrangement. The main benefit of traditional surrogacy is that it costs much less, since there is no IVF procedure involved.

Family Code Section 7960(f)(2): “Gestational carrier” means a woman who is not an intended parent and who agrees to gestate a genetically unrelated embryo pursuant to an assisted reproduction agreement.

A gestational carrier, in contrast, becomes pregnant via an embryo transfer procedure using the intended parent(s)’ embryos, which are created through IVF with the intended parent(s)’ sperm/egg, or donor sperm/egg. So, a gestational carrier is not genetically related to the child. The California Courts have upheld the intended parents’ rights in such arrangements, and therefore carry much less legal risk than traditional surrogacy.

Tarnoff Family Formation, PC has assisted many clients pursuing both traditional and gestational surrogacy, and we would be happy to speak with you further about your family building journey.