Surrogacy is a form of third-party reproduction. The other forms are egg, sperm, and embryo donation. A surrogate pregnancy may be carried by the egg donor—a traditional surrogate—or by another woman who has no genetic ties to the embryo—a gestational surrogate. Surrogacy is a medically and emotionally complex process that involves careful evaluation by physicians, mental health professionals, and attorneys to ensure that the procedure succeeds for both the surrogate as well as the intended parents.
A surrogate is a woman who carries a pregnancy for another couple or woman. The traditional surrogacy requires insemination by sperm from the male partner of the intended parent couple or by donor sperm. This is termed “traditional surrogacy” because it was the fist method of surrogacy used. Medically, it is also the simplest. However, the genetic link between the surrogate carrier and the baby makes this method highly undesirable for emotional reasons, and is rarely the preferred form of surrogacy.
In gestational surrogacy, a woman—called the surrogate—carries to term a pregnancy created by transferring an embryo created with the sperm and egg of the intended parents. Many women who seek surrogates have a severe medical condition that inhibit her from carrying a pregnancy. In these cases, the couple’s sperm and eggs are used to produce an embryo in vitro, and the embryo is placed into the surrogate. In other cases, donor sperm or donor eggs may be used instead.
As might be imagined, the medical side of surrogacy is not the most complex issue. The assisted reproductive techniques are the same as would have been used had the intended couple carried their own embryo to term. The real issues in surrogacy are the legal and emotional issues, and when conflict arises surrounding surrogacy it’s usually the result of the legality of binding agreements agreed to prior to the conception or birth of a child. Traditional surrogacy—where the woman carrying the fetus uses her own eggs—is an approach that carries more legal risk. As such, the majority of surrogacy conducted in the United States involves the use of a gestational carrier.
Most surrogates reside in states where the laws concerning the ultimate adoption process are favorable. Couples using surrogates must navigate the myriad of agencies providing services.
Typically, a gestational carrier is used by a woman who has normally functioning ovaries but lacks a uterus. Women with congenital absence of the uterus or prior hysterectomy due to benign or malignant conditions are obvious candidates. Women with other uterine anomalies or a history of infertility or repetitive miscarriages are also candidates. Gestational surrogacy is also appropriate for women whose medical conditions would preclude a pregnancy: severe heart disease, systemic lupus erythematosis, history of breast cancer, severe kidney disease, cystic fibrosis, severe diabetes, and a history of severe pre-eclampsia.
Gestational surrogates may be known to the intended parents or may be anonymous. Known surrogates are typically relatives or friends who volunteer to carry the pregnancy. Anonymous surrogates are identified thorough agencies that specialize in recruiting women to become surrogates. The surrogate should be a minimum of 21 years of age and have delivered a live born child at term, but the key is the youth of the gestational carrier. Using an older surrogate opens the door to complications, especially pregnancy-induced hypertension or gestational diabetes. Certainly evaluation of any potential surrogate’s overall health, including underlying medical conditions that might complicate a pregnancy, is critical. The surrogate should undergo a complete medical history including a detailed obstetric history, lifestyle history, and physical examination, including screening for syphilis, gonorrhea, chlamydia, cytomegalovirus, HIV, and Hepatitis B and C. The surrogate should have an evaluation of her uterine cavity with the appropriate medical instruments. The surrogate should also be screened for immunity to measles, German measles, mumps, and chicken pox. In addition, her blood type should be noted. All surrogate candidates should receive counseling regarding obstetric risks.
The intended parents should undergo a complete medical history and physical examination. Semen analysis should be obtained for the male partner, and an evaluation of ovarian function should be preformed for the female partner. The intended parents should also receive the same infectious disease screening as the surrogate.
The emotional and psychological issues surrounding surrogacy are complex and should be discussed with a mental health professional. Counseling must provide the surrogate with a clear understanding of the psychological issues related to pregnancy. The surrogate, and her partner if she has one, should explore issues such as managing a relationship with the intended parents, coping with attachment to the fetus, and the effect of a gestational surrogacy arrangement on her own children, her partner, her friends, and her employer and fellow employees.
The relationship between the surrogate and the intended parents is quite sensitive and open to misunderstanding. The surrogate, the intended parents, and the mental health professional should discuss the type of relationship they would like to have. The intended parents must learn to maintain respectful relationship with the surrogate. In addition, expectations they have regarding the pregnancy should be discussed. This includes a discussion of the number of embryos for transfer, prenatal diagnostic interventions, fetal reduction and therapeutic abortion, as well as managing the relationship while respecting the carrier’s right to privacy. In today’s world, nutritional and health choices also come into play. Intended parents must consider their nutritional preferences in the choice of the surrogate. Obviously, smoking by the surrogate must be ruled out, but what about consumption of alcohol, sugary soft drinks, or even caffeine and caffeine-laced drinks? Beyond nutrition, exercise and other lifestyle issues should also be considered. All of these issues are in play and must be discussed openly.
There are a number of legal issues involved in all third-party reproductions. With surrogacy, legal contracts not only must enumerate the fee paid to the surrogate but also may include details regarding the expected behavior of the surrogate to ensure a healthy pregnancy, a list of required prenatal diagnostic tests, and agreements regarding fetal reduction or abortion in the event of multiple pregnancies or the presence of fetal anomalies. Finally, many states allow for a declaration of parentage prior to the child’s birth, which bypasses the need for adoption proceedings. The laws regarding third party reproduction differ from state to state, and some states have none at all. Thus, all couples are advised to consult with an attorney knowledgeable in the area of reproductive law within their individual states.
Additional resources on this subject:
• Ruth Claiborne, a Georgia attorney with years of experience in the field, directs a surrogacy program.
• Mindy Berkson helps couples navigate the complexities of surrogacy. Visit www.lotusblossomconsulting.com