Understanding the Difference Between a Gestational Carrier and Surrogate

Many parents welcome new members to their families through the gift of surrogacy or by using a gestational carrier. These two terms are often confused, and for a long time, laws did not distinguish between the two. However, there are distinct differences between them regarding the genetic connection of the child as well as potential custody agreements.

What Is a Surrogate?

Though the term for someone else carrying your child is “surrogacy,” it doesn’t mean that everyone who carries a child for a couple is technically a surrogate. Instead, a surrogate is a person who both carries the child in question and is the biological mother of them; that is, surrogates provide eggs themselves and, therefore, are directly connected to the child biologically. Couples may use their own genetic material for a surrogate to become pregnant, but they can also use a sperm donor.

Because of the genetic connection, surrogates may be able to make a custody claim, which stands in contrast to gestational carriers. To prevent this, some states allow parents to submit a pre-birth order (PBO) to the court having jurisdiction prior to the birth of the child. The PBO includes signatures from the surrogate and her attorney stating that the surrogate will waive her rights to parentage of the unborn child upon its birth and it will be legally recognized as the child of the intended parents. Basically, a PBO allows the parents to adopt their child before birth instead of having to wait for the infant to be born.

Surrogates also go through more screenings than gestational carriers, including psychological and physical health exams. Some states, like New Jersey, do require screenings for carriers, but when it comes to screenings for surrogates, the reason is simple: genetics.

What Is a Gestational Carrier?

In contrast to a surrogate, a gestational carrier does not have any genetic link to the fetus they carry and birth. They receive fertility treatment to become pregnant with the child, using an egg either provided by the couple or donated by a third party.

Once they become pregnant, they carry the child throughout the course of the pregnancy on behalf of the legal parents. Without any genetic connection to the child they’re carrying, though, gestational carriers have no claim to that child whatsoever — the carrier cannot attempt to claim custody, although they may still sign a PBO. Gestational carriers are actually more common in surrogacy than surrogates themselves.

Other Differences

As there are fundamental differences between surrogates and gestational carriers, laws across the United States treat them differently as well, which is crucial to be aware of if you are considering surrogacy. New Jersey law, for example, does recognize gestational carriers. However, it is permitted in the Garden State only if there is no compensation involved (other for reasonable costs such as housing, food, legal fees, counseling services, and medical bills) and there is no pre-birth agreement to surrender the child. You can speak with your New Jersey adoption lawyer to learn more about the state’s position on these matters, including the New Jersey Gestational Carrier Agreement Act that was enacted in 2018.

Making the Right Choice for Your Family

The personal decision to work with a surrogate or gestational carrier falls to the couple, but it can be helpful to learn more about the legal process with an attorney.

Most individuals want to avoid the adoption process with a traditional surrogate, so they opt for a gestational carrier instead. However, there are many fertility and adoption clinics that work with reputable surrogates who help bring the miracle of a new child to New Jersey families with no issue. Both forms of surrogacy have their merits, making it all the more important to know the differences.

You may decide to speak with a New Jersey adoption lawyer to explore your options and learn more about the process. If that is the case, contact Donald Cofsky at Cofsky & Zeidman today to schedule a consultation. You can reach our office in Haddonfield by phone at 856-429-5005 or by completing and submitting the contact form on our website.