When Did Surrogacy Start: History of Creation And Legalization

Olga Pysana
December 11 2022

Surrogacy is an arrangement where a woman carries and gives birth to another person’s child. The idea of surrogacy may seem modern, but it has been around for thousands of years—and is becoming increasingly popular today among those who cannot conceive or carry their own offspring. 

With traditional surrogacy, the donor's or intended father’s sperm is artificially or naturally combined with the surrogate mother’s egg to form an embryo. Before the development of artificial insemination and assisted reproduction technologies, traditional surrogacy—in which an infertile couple hires a woman to bear their child—was the only option for giving a child to couples who couldn’t conceive on their own.


Today, it could be seen as taboo process because an extramarital sexual encounter is required. Unlike surrogates and intended parents in the present day who are protected by laws, there were no such protections for parties involved in arranged marriages back then.


Although traditional surrogacy can now occur through artificial insemination, it is much less common than gestational surrogacy—thanks to IVF advancements. Traditional surrogacy is even illegal in some states due largely to its higher risk and lower success rate. The traditional surrogacy process can be legally and emotionally challenging for all involved, since the surrogate has a genetic tie to the child.


Despite its disadvantages, traditional surrogacy has made a lasting impact on history. It paved the way for gestational surrogacy—a form of assisted reproduction in which a woman carries and delivers another couple's fertilized egg. Today, same-sex intended parents, infertile couples and single parents often use gestational surrogates to have biologically related children.

How Long Has Surrogacy Been Around

It is important to understand: how long has surrogacy been around? Surrogacy has been practiced for thousands of years, with the earliest known example being in ancient Babylon where women would become pregnant and give birth to children that were not genetically related to their husbands. The purpose was to prevent divorce by ensuring a child's paternity was clear from the beginning


However, in the Book of Genesis, Sarah and Abraham's story is an example of how surrogacy worked thousands of years ago. When Sarah was infertile, she asked her servant Hagar to carry Abraham’s child; however, she impregnated Hagar with Ishmael—Abraham (and therefore also Sarah) ended up with a son named Ishmael!


In another passage from Genesis, the story of Rachel and Jacob—tragic though it is in many ways—comes to a beautiful conclusion. Like Sarah, who could not conceive with her husband Isaac but gave birth to twins when she was impregnated by the Lord through her maidservant Hagar, so too did Rachel give birth only after being touched by God’s power as he visited Bilhah.

When Was Surrogacy Invented

It is interesting to understand: when was surrogacy invented? Although Sarah and Abraham’s story represents the first surviving description of a natural “surrogacy,” it was not until much later that traditional surrogacy—completed through artificial insemination­—arrived.


In the late 18th century, a doctor named John Hunter performed the first successful artificial insemination on an infertile woman. Her husband had been born with a rare congenital defect called hypospadias; this condition caused his sperm ducts to develop improperly and prevented him from fathering children naturally. Dr. Hunter instructed the patient to inseminate his wife using a syringe, resulting in her pregnancy.


Artificial insemination did not become widespread until the mid-1960s, when donor sperm became widely available. In 1964 American parents seeking fertility treatments could turn to one of just a handful of such banks opened across the country. Starting in the 1970s, couples and single women began relying on sperm banks to help them conceive children.

When Did Surrogacy Become Legal

Answering the question "when did surrogacy become legal", we want to understand this question. In 1976, attorney Noel Keane drafted the first surrogacy contract for traditional surrogate parenthood. The events leading to that contract began long before then—when a California couple advertised in the 1970s for a woman willing to carry their child through artificial insemination. After placing an ad, the couple found a woman who was willing to carry their child in exchange for $7,000 and legal and medical expenses totaling around $3,000. Soon after that news spread across the country—and prompted another Michigan couple to contact Keane about finding a surrogate mother of their own.


Keane sought the advice of a judge, who told him that it was not illegal for a surrogate to be inseminated and carry the child herself. After birth, she could also give up her parental rights by signing away those responsibilities with an agreement known as "surrogate relinquishment" or “no-contact/non-paternity acknowledgment” form.


Intended parents could also legally pay for medical-related expenses that resulted from the surrogacy contract; however, Michigan's laws make it illegal to offer a fee in exchange for carrying and delivering a child.


As of this writing in 2022, Michigan law does not favor surrogacy. Surrogacy contracts are void and unenforceable in Detroit—as those involving compensation can result in criminal prosecution by the state government.Keane continued to work for couples hoping to start families, but he was unhappy about the ban on surrogate compensation. Eventually, he sent clients who wanted surrogates to Kentucky.


In 1976, when Lesley and John Brown had been trying to conceive a child for nearly five years without success, Dr. Patrick Steptoe and Professor Robert Edwards agreed to help them by transplanting an embryo into Lesley’s uterus. It took many attempts, but when Steptoe and Edwards finally succeeded in transferring an embryo to Lesley Brown, she gave birth to Louise Joy Brown—the world's first IVF-produced baby.

It is interesting to know: when was the first surrogate baby born. The first baby conceived through gestational surrogacy was born in 1985. Since then, interest in the method has increased and it is now widely used throughout the world. According to the Centers for Disease Control and Prevention, gestational carrier cycles led to nearly 19,000 births between 1999 and 2013.

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