Family Building: Domestic Newborn Adoption and Gestational Surrogacy


by Marni Denenberg, J.D., B.A.

I started working in the family building field over ten years ago, first in the field of private, newborn infant adoption, and now in the field of gestational surrogacy. Within a few weeks of working at the surrogacy agency I received a call from a family considering both private adoption and surrogacy. They wanted my advice, what did I think was the best path for them? A few weeks later, another client reached out with a similar question - this second family was considering gestational surrogacy for the first child, and adoption for a second. Both adoption and gestational surrogacy are wonderful ways to build a family. As to which path is right for you, no one can answer such a personal question. Let’s consider some of the nuances of both private, domestic newborn adoption and gestational surrogacy.

As an adult adoptee myself, I am certainly an adoption advocate. All children deserve to have a loving, stable and permanent home. In deciding whether private newborn adoption is right for you, consider whether you are comfortable parenting a child that is not your biological child. If the answer is no, adoption may not be the best choice. Another consideration is whether you are comfortable with limited information about a child’s socio-medical background. The adoption agency will gather available medical records and socio medical background information from biological parents for potential adoptive parents to review prior to making an adoption plan. Nonetheless, adoptive parents are taking a leap of faith that all of the information provided to them is accurate. Further, in many instances the available information is incomplete (for example, if the biological father is unknown). An additional consideration is whether you are comfortable with the adoption legal process. While an adoption plan will often be made during pregnancy between birth parents and an adoptive family, an adoption plan will not be legally finalized until after birth. As per the state law in which a birth parent resides, legal documents to terminate parental rights cannot be signed until a certain amount of time has passed after birth. For example, under New Jersey law, a birth parent cannot sign surrender documents until after 72 hours after the child’s birth. What does this mean for an adoptive family? As exciting as the prospect of an adoption may be, there is no guarantee that a child will actually become legally free for adoption. The biological mother may, for example, decide to parent once the child is born and if the legal paperwork has not been signed the adoptive parents may have no recourse. Lastly, it is important to consider whether the costs associated with private newborn adoption fit your budget. Costs will vary based upon the agency fees, allowable birth parent expenses, and legal services required. Private newborn adoption may involve a degree of uncertainty, including emotional, legal and financial risk. However, it is truly a magical experience when biological and adoptive parents come together to make an adoption plan for the love of a child.

Now let’s take a look at gestational surrogacy. Gestational surrogacy involves the medical transfer of an embryo (or embryos) created by intended parent(s) (using either the intended parent(s) own egg/sperm or third-party donor egg/sperm) to a woman willing to carry the child on behalf of the intended parent(s). An initial consideration in deciding whether gestational surrogacy is right for you is whether you wish to parent a child that shares your genetic background (or part thereof). This can be accomplished using an embryo created using your egg/sperm. If this is important to you, and you are able to successfully create your own embryos, gestational surrogacy may be a good option. If donor eggs/ sperm are needed, it is important to consider your comfort level in working with a donor. While donors may be carefully screened, intended parents will take a leap of faith in relying on the accuracy of donor information and screening process. Another consideration is whether you are comfortable with the gestational surrogacy legal process. In some states the gestational surrogacy laws are friendly; however, in a handful of states gestational surrogacy is not legal. Further, there are even some states with no legislation specifically addressing this new area of law (requiring interpretation of existing case law by state, and in some instances, by county). To help navigate a surrogacy journey, many families enlist the support of a gestational surrogacy agency to help match them with a qualified carrier, to provide escrow management services and to offer support services with third party entities (including the fertility clinic, any medical monitoring facility, a carriers’ OBGYN, the hospital of delivery, any third party insurers and legal counsel). Lastly, it is important to consider whether the costs of gestational surrogacy fit your budget. These costs will vary, and may be significantly higher than those associated with private newborn infant adoption. These costs will vary based upon whether the carrier will receive compensation, medical costs, any insurance costs, agency fees and legal fees.

There are many factors to consider when exploring family building options. Becoming educated about the process, legalities and costs associated with private newborn infant adoption and gestational surrogacy may be helpful in choosing your path. Seeking out advice from family, friends and other professionals in your support system may also be helpful. Ultimately, this is a personal decision for you to make. This author is a proponent of both adoption and gestational surrogacy, along other methods of family building, as there is simply nothing more important than family.

For more about adoption, click here.

For more about surrogacy, click here.

Marni Denenberg, J.D., B.A. is the Client Relations Manager for The Surrogacy Experience LLC

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