While other forms of
surrogacy and third party

assisted reproductive technology (A.R.T.) involve medical/technological advances, traditional or artificial insemination (AI) surrogacy results from a change in perspective—that a woman might voluntarily become impregnated and surrender the resulting child to the sperm donor and his wife. This approach to solving childlessness first occurred millennia ago,* and it has recently enjoyed a resurgence.

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—particularly as that child is genetically the surrogatge’s.

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.

Once the doctors complete the artificial insemination process and the surrogate becomes pregnant, a medical affidavit is secured which traces the genetic lineage of the pregnancy and establishes that the intended father is likely the genetic father of the child—and not the surrogate’s 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 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 establish the fatherhood of the child as well as overcoming the legal presumption that if the surrogate was married either at the time of conception or the time of delivery, that her husband is the father of the child. The order of paternity allows the child to leave the hospital upon its birth, with the child's declared father.

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 sperm donor is the genetic and legal parent of the child to be born; that the surrogate’s husband is not genetically related to the child to be born and hence has no parental rights nor parental obligations to raise the child; that the sperm donor 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 sperm donor as declared father of the child.

Following the birth of the child, a step parent adoption is conducted in which the wife of the sperm donor replaces the surrogate as the mother of the child, and a replacement birth certificate issues so that it appears, at inception, that the sperm donor and his wife are the parents of the child.

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.

*Two surrogacy arrangements were documented in the Old Testament. Sarah, wife of Abraham, was infertile, and enlisted her maid, Hagar, to bear Abraham’s child. Genesis, Chapter 16. Isaac and his barren wife, Rachel, relied upon Rachel’s servant, Bilbah, to bear Isaac’s child. Genesis, Chapter 30.  It is doubtful, however, that the insemination was “artificial.”