When most people think of surrogacy today, they are thinking of gestational surrogacy—an arrangement in which the gestational carrier has no genetic relationship to the child she carries. Traditional surrogacy is different, and it presents unique legal and emotional challenges that make it uncommon in modern fertility practice.
What Is Traditional Surrogacy?
Traditional surrogacy is a surrogacy arrangement in which the surrogate is also the genetic mother of the child. Typically, the surrogate conceives through intrauterine insemination (IUI) using the sperm of an intended father or a sperm donor. Because the surrogate’s own egg is used, she is genetically related to the child.
This differs from gestational surrogacy, where an embryo created through IVF is transferred to a gestational carrier who has no genetic connection to the child.
Is Traditional Surrogacy Legal in North Carolina?
North Carolina does not have a statute that expressly authorizes or prohibits traditional surrogacy. Likewise, there is no published North Carolina appellate case directly addressing the enforceability of a traditional surrogacy arrangement.
As a result, some commentators characterize traditional surrogacy as technically permissible because no law expressly forbids it.
However, the absence of a prohibition should not be confused with legal certainty.
Why Traditional Surrogacy Is Rarely Practiced
Traditional surrogacy is not widely practiced today. Most fertility clinics do not facilitate traditional surrogacy arrangements and instead focus on gestational surrogacy. One reason is the significant emotional and psychological complexity that can arise when the woman carrying the pregnancy is also the child’s genetic mother. Industry professionals frequently cite the increased potential for parentage disputes and conflicting expectations among the parties involved.
For intended parents, traditional surrogacy may initially appear less expensive because it does not necessarily require IVF. However, any savings can be outweighed by the legal uncertainty and risk that accompany the arrangement.
Our View: North Carolina Law Does Not Clearly Support Traditional Surrogacy
In our opinion, North Carolina’s existing legal framework does not provide a reliable path for traditional surrogacy.
North Carolina courts have developed procedures for establishing parentage in many gestational surrogacy cases. These procedures generally rely on the fact that the gestational carrier is not the child’s genetic mother.
Traditional surrogacy presents a fundamentally different situation. Because the surrogate is the genetic mother, the legal analysis becomes far more complicated. The rationale supporting parentage orders in gestational surrogacy cases may not apply when the birth mother and genetic mother are the same person.
For that reason, we believe that obtaining a parentage order in a traditional surrogacy arrangement in North Carolina may be difficult, and in some circumstances, impossible.
Traditional Surrogacy Looks More Like an Adoption
From a legal perspective, traditional surrogacy closely resembles an adoption.
In a traditional surrogacy arrangement, the child is genetically related to the surrogate. Any transfer of parental rights from the surrogate to the intended parent or parents therefore raises many of the same legal issues that arise in an adoption proceeding.
Importantly, North Carolina law does not create a distinct statutory framework for traditional surrogacy. Without a separate legal structure, courts may view the relinquishment of parental rights by a genetic mother through a lens similar to adoption law rather than surrogacy law.
That distinction matters. Adoption proceedings are governed by specific statutory requirements designed to protect the rights of biological parents and children. Attempting to bypass those protections through a private surrogacy agreement may present significant legal obstacles.
Proceed with Extreme Caution
While traditional surrogacy is not expressly illegal in North Carolina, its legal status remains uncertain. The arrangement is rarely utilized, is generally not facilitated by most fertility clinics, and presents substantial emotional and legal risks for everyone involved.
For these reasons, we generally recommend gestational surrogacy when surrogacy is being considered. Gestational surrogacy offers a more established legal framework, clearer pathways to parentage, and significantly fewer risks relating to parental rights and custody.
Every family-building journey is unique. Anyone considering traditional surrogacy in North Carolina should consult with experienced reproductive law counsel before moving forward so that the legal risks can be fully evaluated in light of the specific facts of the arrangement.
Village Law Group