Ask the Surrogacy Experts

We have been looking at agencies to handle our surrogacy program. I’ve reached out to some in various states, but the costs seem very high. Our bigger issue is we want to be around during the pregnancy, but we both have very high hour jobs here. We live in Michigan and I really would prefer to find a surrogate close to home. – Aaron and Mark


Good morning Aaron and Mark.

I have a lot of Intended Parents who want be very involved in their pregnancy – from attending the prenatal checkups to weekend visits with their surrogate. The problem is that you live in Michigan, and commercial surrogacy agreements are prohibited by law in that state. So finding a surrogate close to home (for you) may not be realistic.

Individuals who pursue commercial arrangements in Michigan can face stiff criminal penalties.  You may be legally able to hire an “altruistic” surrogate (who is paid only reimbursement for medical expenses), but finding an altruistic surrogate is difficult because it’s a lot of work without much benefit.  In any case, you won’t be able to use an agency to assist you through the process, and you need to find your surrogate through social channels because commercial advertising is also banned.

Of course Independent Surrogacy is not new… and I work with a number of clients every year who do this successfully… but it’s not for the faint of heart. The obligations that fall on the intended parents are substantial, and the budget for an Indy surrogacy journey is not as low as you might think. You can look at this article in the Guide for some details on how to manage your own surrogacy journey. (Also note that SENSIBLE offers consulting services for couples considering Indy surrogacy.)

The most critical requirement for any surrogacy program is that the baby is born in a “surrogacy friendly” state. Surrogacy-friendly states will uphold your surrogacy contract, and that allows you to be the legal parents on the birth certificate. This requirement is especially critical for LGBT families.

Some of Michigan’s neighboring states are friendlier to surrogacy agreements. You could hire a surrogate in Illinois, Ohio, Wisconsin, Missouri.  Every state has its own laws — and it’s often a question of “degree of support” by the courts or legislature.  There are only a few states that are black-and-white for or against — most are somewhere in the middle.

An “ideal” surrogacy state will not only have legislation validating the surrogacy agreement, but also allow pre-birth orders (so that your baby is yours even before the delivery). There are about eight such states in the US at the moment. Most states with explicit legislation offer “post-birth orders”, which name you as the legal parents in the days or weeks after the baby is born. The difference between pre-birth and post-birth orders is really a matter of convenience, becasue they both guarantee the same legal outcome 0- that you’ll be the legal parents of your surrogacy baby.

Other good states (not perfect, but still reasonable) may not have surrogacy laws, but they have court decisions supporting surrogacy contracts that will provide precedent for your own judge when you apply for your own parental rights.

If your state doesn’t support per-birth orders, then a ‘post-birth order” can be nearly as good. When the baby is born the surrogate will be the legal mother, but a post-birth order can be quickly approved if the state has a history of being otherwise friendly. (Canada for example does not support pre-birth orders, but post-birth orders are quite routine.)

All that said, Michigan is one state that is definitely anti-surrogacy. If your baby is born in Michigan, the local authorities will not name you as the official parents because your surrogacy agreement is illegal.

As for a good clinic…   I recommend my clinics in Texas or California (both are states with friendly surrogacy laws). The clinics have excellent success rates and are giving my clients a good negotiated price. Of course I’m biased, because I work with them often, I like the team at both, and the results have been stellar.

Finally, I know that many parents hope to find a surrogate who lives nearby so they can visit during the pregnancy or attend the prenatal exams.  I totally understand that desire.  But it’s not always a realistic expectation. 

I regularly hire surrogates for clients in different countries (even different continents), and both the surrogate and parents do fine.  My advise is to look first at where the pregnancy and delivery will be the safest and most secure.  Then you can make decisions from that short list of options.

I hope this makes sense.

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