When a wife has eggs suitable for reproduction
but certain physiological problems prevent her from

carrying a pregnancy to term, she and her husband can enlist the services of a gestational surrogate to carry their own genetic child or children to term.

More precisely, gestational surrogacy is an arrangement where the intended parents use their own sperm and eggs, which are fertilized in vitro (test tube), and a number of the embryos are surgically transferred into the uterus of the gestational surrogate, who will carry the child or children to term. Upon birth, it is expected that the surrogate shall surrender the child or children to the intended parents, who will treat the child as their own for all purposes, and release the surrogate and her husband (if any) from all parental responsibility.

These are “high tech” babies, and Sara Clay and her legal assistant, Martha Futral, can assist in recommending professionals (infertility physicians and clinics and psychologists who screen the surrogacy participants) and in providing information in locating prospective surrogates. Once an appropriate surrogate is located and screened (medically and psychologically), Ms. Clay can draft a contract outlining the responsibilities throughout the entirety of the surrogacy arrangement which addresses the myriad complexities of a pregnancy in another woman’s uterus.

Most infertility clinics will not proceed without a contract being in place. Most also require an attorney's opinion letter upon the execution of the contract. Ms. Clay issues an opinion letter to the infertility clinic when the contract is fully executed.


When the doctors complete the embryo transfer and the surrogate becomes pregnant, a medical affidavit is secured which traces the genetic lineage of the pregnancy and establishes that the intended parents are in fact the genetic parents of the child(ren)—and not the surrogate and her husband.   The affidavit is used in the legal proceedings in order to document to the court the genetic parentage of the child.  Judges generally give considerable credence to doctor’s affidavits, which provides a comfort factor for the Judge in the decision the Judge must render.

Where the baby will be born in Georgia, a maternity/paternity hearing at the beginning of the third trimester of the pregnancy is conducted.  This hearing can occur in a county of residence of either the surrogate or the intended parents.  It is a “friendly lawsuit” in order to rebut the usual presumption that the pregnant woman (surrogate) is the mother of the child she is bearing, as well as the legal presumption when the surrogate is married either at the time of conception or the time of delivery, that her husband is the father of the child.

The hearing is generally held in a closed setting, so that the public is not admitted, and that the nature of the hearing is confidential among the involved parties.  When the hearing is conducted, Ms. Clay seeks an order that the intended parents are the genetic and legal parents of the child to be born; that the surrogate and surrogate’s husband are not genetically related to the child to be born and hence have no parental rights nor parental obligations to raise the child; that the intended parents will make elective medical decisions on the behalf of the child at its birth; that the files will be sealed; and that the birth certificates will issue with the intended father as declared father of the child and the intended mother as declared mother of the child.

As a result of the maternity/paternity hearing, there is no necessity of an adoption process. And while there is no legal authority in Georgia requiring the court to enter a maternity/paternity order, Sara and her predecessor, Mark Johnson, have been uniformly successful in upwards of 60 births in having the child recognized as the legal offspring of the intended parents.