When did surrogacy start? Many people guess that surrogacy is a uniquely modern process, but it’s actually been around for centuries. Before modern technology made gestational surrogacy possible, traditional surrogacy was the way it was done. We’ll trace the history of surrogacy from its origins to the modern medical process it has become today. By gaining an understanding of when surrogacy started and how it’s evolved over the years, you will have a more holistic view of surrogacy and all it involves.
The Historical Journey Of Surrogacy
Surrogacy as a means of growing one’s family has been around for a very long time in one form or another. In fact, there is a story of traditional surrogacy recorded in the first book of the Bible. Modern surrogacy as we know it today is very different than it was in biblical times, of course. Let’s look at the path of surrogacy throughout history.
Early Record Of Surrogacy
The first record of someone becoming a parent via surrogacy is present in the Book of Genesis, the first book of the Bible. It would be several centuries before technology evolved enough to allow surrogacy to become a common form of assisted reproduction.
In the Book of Genesis, one of the earliest biblical stories tells the tale of Abraham, Sarah, and Hagar. Abraham and Sarah are married but childless. Hagar is their servant. Sarah and Abraham decided that Hagar should become pregnant with Abraham’s child so he could have a child. Hagar served as a traditional surrogate and became pregnant with a child that was biologically hers and Abraham’s. The story goes on to say that Sarah became quite jealous and resentful of Hagar. Sarah mistreated her, causing her to run away into the desert. She returned after hearing direction from an angel, and she gave birth to a son named Ishmael. Abraham and Sarah raised Ishmael as their son.
Ancient Babylonian law permitted surrogacy when a married woman was unable to become pregnant. In some instances, this was the only way for an infertile woman to stay married, since the law also gave men the right to divorce a woman who didn’t bear children for him.
When viewed through a modern lens, the story of Sarah and Abraham sheds some light on why surrogacy has been a taboo practice in many cultures throughout the ages. In this case, Hagar and Abraham needed to have intercourse to become pregnant, and it’s unclear if Hagar consented to this arrangement. She was, after all, a servant/slave to Sarah.
It’s also a clear example of how emotionally complex it is for a woman to carry and give birth to a biological child who will be raised by someone else. This has remained true throughout the ages, which is why traditional surrogacy is rarely practiced in modern times. Let’s take a look at what traditional surrogacy is and how it differs from the more modern gestational surrogacy.
Until the mid-1980s, traditional surrogacy was the only way to become a parent via surrogacy. Today, traditional surrogacy is rarely practiced, with modern techniques making gestational surrogacy possible.
In traditional surrogacy, the surrogate mother uses her own eggs to become pregnant, which means that she is actually the biological mother of the child. She becomes pregnant with the intention of giving the baby to someone else to raise.
Gestational surrogacy, on the other hand, uses donor eggs along with sperm from a donor or the intended father. Embryos are created in a lab and then surgically transferred to the surrogate’s body. There is no biological connection between the surrogate and the child she carries. This type of surrogacy is most common today because it removes the emotional and legal complexities a traditional surrogacy arrangement may create.
Today there are numerous forms of assisted reproductive technology. For couples who struggle with infertility, single people who wish to become parents, or for same-sex couples, gestational surrogacy is one of many options.
Surrogacy started to become more widely accepted in the late 1970s, although this was usually through uncompensated traditional surrogacy arrangements. The invention of IVF and its increasing availability have helped surrogacy quickly evolve to the form we see it in today.
The First IVF
It took a lot of developments medically, legally, and culturally, to allow modern gestational surrogacy to become what it is today.
Many people are surprised to learn that the first successful, although highly unethical, artificial insemination of a woman was in the 19th century. In 1884, American doctor William Pancoast injected donor sperm into a woman’s uterus while she was under anesthesia. She had come to him seeking answers about why she and her husband had been unable to conceive. Although Dr. Pancoast discovered that the couple’s infertility was a result of her husband’s low sperm count, he didn’t reveal this to the couple.
Instead, Dr. Pancoast obtained a sperm sample from one of his medical students—the one who was voted to be the most handsome among the group. Yes, really. Dr. Pancoast then asked the woman to come in for a final examination, and without her knowledge or consent, he injected the medical student’s sperm into her cervix using a syringe. The procedure did result in a successful pregnancy and live birth. After the child was born, the doctor did inform the woman’s husband that donor sperm had been used, but neither man chose to inform the woman. Two decades later, one of the medical students admitted to what was done by publishing an account of the incident in a medical journal. Needless to say, this was not a viable solution for wider treatment, and the science of assisted reproduction slowly but surely progressed over the next several decades in a far more ethical way.
In the 1940s and 1950s, medical researchers discovered how to successfully cryopreserve male sperm, and they discovered that it was possible to fertilize a female ovum outside of the uterus. Both of these breakthroughs, along with the development of artificial hormones like estrogen, laid the foundation for IVF, or in vitro fertilization.
The Mayo Clinic defines in vitro fertilization as “a complex series of procedures used to help with fertility or prevent genetic problems and assist with the conception of a child.”
“In vitro” is Latin for “in the glass,” and it’s used to describe a medical experiment, study, or procedure outside the body of a living organism. “In the glass” is a fitting term because the procedure takes place in a test tube or Petri dish. You may have heard the term “test tube babies,” which is a term used by the media and laypeople when talking about babies born via IVF.
The first baby to be conceived with IVF was Louise Brown who was born in 1978 in the UK. IVF became increasingly common after this, with the first American IVF baby being born in 1981. Science Daily estimates that over 8 million babies have been born as a result of IVF since then.
The Development Of Surrogacy Law
Surrogacy started to become more mainstream and legally sound beginning in 1976. The first surrogacy contract was drafted that year by lawyer Noel Keane, who went on to be known as the father of surrogate parenting. At this point in time, all surrogacy arrangements were traditional, as in the surrogate mother became pregnant using her own eggs.
The 1980s saw the rapid development of new legal, ethical, and medical aspects of surrogacy.
The first known compensated surrogacy arrangement took place in 1980. This was a traditional surrogacy, with the surrogate mother becoming pregnant via artificial insemination, using her own eggs. She went on to regret her decision, and she became an outspoken critic of surrogacy, publishing a book called Birth Mother using the pseudonym Elizabeth Kane.
Then, in 1982, the first baby conceived using donor eggs was born, paving the way for gestational surrogacy to become possible. The increasing availability and acceptance of surrogacy in the early 1980s led to much debate about the practice, but it all centered on traditional surrogacy, where the surrogate is actually a genetic parent to the baby. All of that would change a few years later when gestational surrogacy entered the scene.
The most important and well known case that influenced surrogacy law was the Baby M case of 1986. This case is the first American court ruling on the validity of surrogacy. After struggling with infertility for several years, William & Elizabeth Stern decided to pursue parenthood via surrogacy. They ran a newspaper ad seeking a surrogate. After placing the ad, the Sterns entered into a surrogacy agreement with Mary Beth Whitehead.
Mr. and Mrs. Stern were professionally accomplished, a biochemist and a pediatrician, and therefore they were very well off. Mary Beth was not wealthy by any means: she was the wife of a sanitation worker and mother of two. Mary Beth Whitehead acted as a traditional surrogate, using her own eggs. She was artificially inseminated with William Stern’s sperm after agreeing to a total compensation of $10,000.
The parties did create a contract, but after the birth, Mary Beth decided she was emotionally attached and wanted to keep the child, known publicly as Baby M. Mary Beth initially gave the child over to the Sterns, but days later, she and her husband kidnapped the infant. Yikes. Long, expensive and highly publicized court cases ensued, and although Baby M was ultimately placed with the Stern family, the case made a lasting impression on the American public. And not a good one.
Because of this controversial case, the state of Michigan will still not honor surrogacy agreements. The case was cited once again in 2019 when New York legislators attempted to legalize compensated surrogacy. To this day, there is a misconception that most surrogates have difficulty “giving up” the children they carry, which is rarely the case. Shannon Boff, the first woman to act as a gestational surrogate, described the difference between her first surrogacy, which was traditional, and her second, in which she was not the genetic mother: “With the first surrogate baby, I had to keep telling myself that this was the couple’s child,” she says. “This one I knew wasn’t mine. That made it easier.”
Once gestational surrogacy became possible, many of the legal difficulties present in the Baby M case became irrelevant. States began to regulate or restrict access to surrogacy, however, in large part due to the controversy. Proponents of surrogacy began to work on standardizing many of the trickier legal issues, establishing a protocol for drafting enforceable surrogacy contracts and obtaining pre or post-birth parentage orders that name the intended parents, not the surrogate, on a child’s birth certificate.
Another landmark case in the world of surrogacy was the 1990 Calvert v. Johnson case. The gestational carrier changed her mind and fought to keep the baby. Because this was a gestational surrogacy arrangement, she was not genetically related to the baby at all. The baby was conceived using the intended parents’ egg and sperm.
All of the involved parties had signed a contract outlining the terms of their arrangement. When the fight made it to court, it was the first time a judge would rule on whether or not a surrogacy contract is enforceable. The judge ruled in favor of the intended parents, establishing a clear legal precedent that surrogacy contracts are valid and enforceable.
The First Gestational Surrogacy Journey
Let’s look more closely at the first gestational surrogacy journey. The first gestational surrogacy occurred in 1985 when Shannon Boff agreed to become a surrogate for a couple in New York. They had struggled to get pregnant, and after trying for over 13 years unsuccessfully, they turned to the idea of surrogacy. For the first time, doctors retrieved eggs from the intended mother, inseminated them with the intended father’s sperm in a lab, and then inserted the fertilized embryos into the surrogate’s uterus. Shannon did receive compensation for the arrangement, and the legal contract was drawn up by the lawyer Noel Keane who was mentioned above.
Today, gestational surrogacy is highly preferred and much more widely accepted rather than traditional surrogacy. In fact, many professionals in the assisted reproduction field will not work with people who choose to pursue traditional surrogacy due to the complicated legal and ethical implications. There are several states where traditional surrogacy contracts are unenforceable, and there are even a handful where such arrangements are punishable by law.
Gestational surrogacy is still illegal in three states as of early 2021. In the United States, gestational surrogacy is illegal in Louisiana, Michigan, and Nebraska. There are several states that have laws that explicitly allow gestational surrogacy, but the vast majority have no laws on the books one way or another. Instead, decisions about legal matters are left to the individual court system.
Most recently, New York state enacted a law to allow gestational surrogacy. It had previously been illegal. They are also the first state to adopt a “surrogate’s bill of rights,” which goes a long way toward protecting the rights of women who act as gestational carriers. We are hopeful that more states will adopt smart, evidence-based regulations like this one.
Today, approximately 750 babies are born due to gestational surrogacy each year.
The Future Of Surrogacy
Gestational surrogacy has evolved over the years to become a widely accepted form of assisted reproductive technology. It allows intended parents of all backgrounds and circumstances to fulfill their dream of having a child of their own. Advocates of surrogacy continue to push for states to enact laws protecting the practice of gestational surrogacy and the rights of all those involved.
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