Would-be parents flock to Oregon to start their families with the help of surrogates. We explore the numerous factors that make Oregon a top surrogacy destination.
It was never about the money.
Cristina Ferguson, 45, knew after three pregnancies in her 20s — one that ended in miscarriage and two that resulted in healthy babies — that she wanted to ease the heartache of other would-be parents who had trouble conceiving.
“I empathized,” says Ferguson. “It just felt like a thing in my life, a pull toward wanting to help someone so they could have a happy ending.”
It took until last year — and a chance encounter with a Beaverton surrogacy agency — to realize her dream of carrying a baby for an LGBTQ family. Now Ferguson, a social worker who lives in Reno, Nevada, has only one regret: “I would have done it younger, so I could do it again.”
That Oregon played a starring role in Ferguson’s journey is both a coincidence and not.
Even as COVID-19 upends every aspect of life today, Oregon remains a leader in surrogacy in the United States and internationally because of a host of factors that include: top fertility clinics, experienced family-formation lawyers, numerous surrogacy agencies, friendly attitudes toward LGBTQ parents, and an easy legal process for assigning rights to parents who might not be genetically related to their children. Add to this mix Oregon’s population of open-minded moms who want to give others the gift of children, and it’s clear why couples and individuals have come to Oregon from across the country and overseas to conceive. Health concerns and international travel restrictions due to the coronavirus have made the already complicated process more so, but that hasn’t slowed demand here, experts say.
“It’s welcoming in terms of the law and politically,” says Robin Pope, a Beaverton lawyer who helped establish Oregon’s legal process for surrogacy. “We are able to do virtually any permutation you can think of.”
It wasn’t always that way.
In the 1970s and ’80s, gay and infertile couples faced a very different medical, political and legal landscape.
Initially, surrogates were genetically linked to the babies (see “Glossary” at the end of the article). The surrogates donated their eggs and carried babies conceived with either donated sperm or the sperm of intended fathers. Such surrogacies came with risk and headaches. For one, there was the worry a surrogate might change her mind (see “Washington” information below).
In Oregon then, state agencies also required that intended parents go through adoption proceedings, even if they used some of their own genetic material. That meant intended parents also needed to submit to home studies and criminal background checks. That felt wrong and intrusive, says Pope: “Basically, clients asked, why do I have to adopt my own baby?”
In the 1990s, as doctors made advances in creating embryos through in vitro fertilization, more couples opted to transfer those embryos to surrogates with no genetic link to the babies they gestated. Pope, the Beaverton lawyer, wanted couples such as these to avoid the adoption process. Using an existing Oregon statute, Pope and Eugene lawyer Tim Brewer helped create a method for establishing legal parentage without going through an adoption.
With each new variation in family formation, Pope and others used the existing statute to give legal rights to the people who intended to parent the child born via surrogacy. By 2008, the process accommodated single parents, gay parents, parents who used some of their own genetic material and parents who used none of their genetic material. It was all done without changing Oregon law. Now, in all cases except international ones that require different rules, intended parents can establish legal rights to the child before it is born. The judicial order then becomes effective when the child is born.
“Our parentage process is quite popular,” says Pope, who works with parents across the U.S. and in China, Israel, Western Europe, New Zealand and Australia. “I’m really proud of it … I know people all over the world who have become parents, and I helped them do that.”
Elsewhere in the country
Other states have kept pace with Oregon or caught up, as celebrities such as Kim Kardashian have turned to surrogacy as an increasingly out-in-the-open option.
Creative Family Connections, a Maryland surrogacy agency, maintains an online map of U.S. surrogacy laws. There are no federal regulations, and states have adopted different practices. In 2020, Creative Family Connections gave a green light to 10 states and Washington, D.C., where surrogacy is permitted for all parents, pre-birth orders are granted and both intended parents are named on the birth certificate.
California and Washington, which both passed specific legislation outlining the surrogacy process, are among the 11 “green light” jurisdictions. (The agency classifies Oregon as “light green” because it doesn’t have a law that specifically addresses surrogacy, but lawyers here argue it’s not necessary given existing practice.)
Only a few states remain “red lights,” either because they ban compensated surrogacy or make it next to impossible. For many years that list included New York, where, despite pressure from LGBTQ advocates, legislators ran up against conservative opponents and an unlikely one: famed feminist Gloria Steinem. Together, they argued that “commercial” surrogacy exploited vulnerable women. (Steinem said she didn’t oppose “altruistic” surrogacy.)
Amid the pandemic, New York reversed its ban on paid surrogacy, allowing it to go forward starting in 2021.
The idea of starting a family or expanding one is dizzying for anybody. For intended parents such as Bob Ball and Grant Jones, the process to become parents might be more laborious than actual labor.
The Portland couple first considered adoption. But when a birth mother and father rejected them because they are gay, they turned to surrogacy. Then the questions and the decisions hit them.
“You just have to kind of dive in and learn,” says Ball.
They picked an egg donor and a gestational carrier, and finding matches meant considering questions of life and death. If something were wrong with a fetus, would they want to go forward with birth? Would the carrier? Was she open to a C-section? A natural birth? An all-organic diet? Would she agree to refrain from travel to places that banned paid surrogacy, just in case?
All of these matters and more were eventually spelled out in contracts by attorneys who represented the couple and the carrier separately. Ball and Jones, who used the Northwest Surrogacy Center to find an egg donor and carrier and ORM Fertility clinic to create and transplant embryos, paid all the fees plus health insurance and expenses for the carrier.
In Oregon, first-time surrogates can expect $30,000 to $40,000 in base compensation. Experienced surrogates can earn a bit more, $35,000 to $45,000.
All told, the Jones-Ball family spent far more than that.
Their surrogate gave birth to twin boys, Wyatt and Parker, in 2013. As with all pregnancies, real life sometimes intrudes on surrogacy; Wyatt died when he was about 7 weeks old. If not for the unexpected tragedy, Ball says they would have added to their family.
“It’s like my body was meant to do it”
Over the years, Cristina Ferguson, the Nevada surrogate, looked into surrogacy by talking to agencies in California and Texas. “I just felt like a number,” she says of those experiences.
Searching the internet one day in 2016, she stumbled upon a posting for All Families Surrogacy, an agency in Beaverton whose founder and director, Carey Flamer-Powell, once acted as a surrogate for a lesbian couple.
Ferguson signed up. Then she had to have unexpected back surgery.
Eventually, though, she flew to Portland for a uterine evaluation at ORM Fertility, which claims to perform 16 percent of gestational surrogacy treatments with IVF in the U.S. She then underwent psychological screenings to make sure she had a stable home life (her husband supported the decision, as did her teenage children) and a clear understanding of the process and terms. “I’ve always known I would have no issue handing over that baby,” she says.
Because of the rigorous process, only about 3% to 5% of people who express interest in becoming surrogates do, Flamer-Powell says. To avoid potentially exploitative situations, one of the functions of the screening process is to weed out would-be surrogates who only sign up for the money.
Flamer-Powell matched Ferguson with an LGBTQ couple who was like-minded (and requested privacy for themselves and their child). “Carey is like a wizard in matchmaking,” says Ferguson.
Five days after a doctor at ORM Fertility implanted an embryo, Ferguson took a hormone test that showed the pregnancy took. She texted the couple, who were ecstatic.
When she gave birth last year, the intended parents were in the hospital room with Ferguson and her husband. It was her choice to have hospital staff immediately hand the baby to the parents, not her, for skin-to-skin contact.
“Watching them hold the baby for the first time was by far one of the best moments of my life,” she says.
For decades, Washington and Oregon held different attitudes toward surrogacy.
The story of why goes back to 1986, when the fate of a child known as Baby M captured the imagination of Americans.
Baby M got her start as a newspaper ad in a New Jersey daily. A professional couple in their early 40s, William and Elizabeth Stern, wanted a child and sought the assistance of a surrogate. Mary Beth Whitehead, then a married mother of two in her late 20s, responded to the ad. The New York Times reported she agreed to be artificially inseminated with William Stern’s sperm and then relinquish her rights to the child, which would be hers genetically, for $10,000 (the equivalent of $24,000 today).
After giving birth to a girl she called Sara Elizabeth and the Sterns called Melissa Elizabeth, Whitehead changed her mind, igniting a court battle that made headlines internationally. “Baby’s fate rates King Solomon’s touch,” blared The Boston Globe.
At the time, the law was fuzzy on what reigned when it came to parentage — a legal contract or blood relation. The final outcome muddied the legal precedent around surrogacy. The New Jersey Supreme Court nullified the surrogacy contract but awarded custody to the Sterns, according to the Times.
“I wanted to do something good for someone, and if I could have done it, I would have, but my emotions just overpowered me,” Whitehead told The New York Times 34 years ago. “People treat it like we’re fighting over a car. But she’s not a possession, she’s a part of me.”
In response to the dramatic tale unfolding in New Jersey, state legislatures across the country took action to prevent another Baby M.
Washington was one of them. Oregon was not.
Led by Republican Sen. Linda Smith of Vancouver, the state of Washington in 1989 outlawed paid surrogacy, such as what happened in the Baby M case. (Smith would go on to win a seat in U.S. House of Representatives and in 1998 founded a nonprofit that fights sex trafficking.)
In the intervening years, medical advances made genetic surrogates such as Mary Beth Whitehead far less common. In their place now are gestational surrogates who carry embryos from donated sperm and eggs. These surrogates have no genetic link to the children they carry.
It wasn’t until 2019 that the laws in Washington caught up with the medical advances that made cases such as Baby M more unlikely. Led by then-state Rep. Jamie Pedersen, a gay Seattle Democrat whose children were born via surrogate in California, Washington last year adopted the Uniform Parentage Act.
The bill makes paid surrogacy lawful, and it puts in place legal, financial and medical protections for surrogates and intended parents so everyone enters such arrangements willingly and no one changes their minds.
“It’s now specifically allowed and there are guidelines,” says Mark Demaray, a lawyer north of Seattle who specializes in surrogacy cases. “Everyone knows where they stand.”
GLOSSARY OF TERMS
Medical advances coupled with society’s embrace of new kinds of families mean new terminology to describe the myriad ways babies enter the world today.
Surrogate — A generic term that actually encompasses two very different scenarios in which a person with a uterus (not necessarily a person who identifies as a woman) carries a child who is intended for a different parent or parents.
Genetic surrogate — Also known as a “traditional surrogate,” a genetic surrogate donates her own egg and agrees to carry the baby formed from that egg with donated sperm or the sperm of a person who intends to raise the child. A genetic surrogate agrees to relinquish parental rights upon birth. But as some cases show, this scenario comes with risks. (See “Washington” sidebar page 14.)
Gestational carrier — Also known as a “gestational surrogate,” this is a person with a uterus (again, not necessarily a person who identifies as a woman) who gestates an embryo that was formed from someone else’s egg that was fertilized with either donated sperm or the sperm of a person who intends to raise the child. A gestational carrier has no genetic relationship with the child.
Altruistic surrogate — A surrogate who carries a child for a relative or close friend or stranger who is not compensated beyond reasonable expenses such as medical copays and deductibles.
Commercial surrogate — A term favored by surrogacy opponents. It’s a surrogate who carries a child for someone with whom she has a contractual relationship. Surrogates such as these can expect to have their medical bills covered and earn additional compensation. Proponents of surrogacy would call this person a “compensated surrogate.”
Intended parent(s) — The person or couple who intend to raise a child whether they’re genetically related to the child or not. In Oregon and other states, intended parents have legal rights even before the child is born.
Pre-birth parentage order — Specifically, intended parents in Oregon and elsewhere have rights through a pre-birth parentage order: a court order that establishes the intended parents as a child’s legal parents even before the child’s birth. The order overrides the assumption that a child belongs to his or her surrogate and the surrogate’s spouse.