Couples who are unable to conceive a child on their own sometimes turn to surrogacy. Two types of surrogacy--traditional and gestational--have different legal and medical implications for the intended parents.
Types of Surrogacy
A traditional surrogate is the genetic mother of a child she carries for someone else. The traditional surrogate "donates" both her eggs and her uterus to create a child for another couple (the intended parents). The traditional surrogate is artificially inseminated using the sperm of the intended father. In contrast, the gestational surrogate provides only the use of her uterus to the intended parents. Gestational surrogacy requires in vitro fertilization to produce the embryo from the egg and sperm of the intended parents. The gestational surrogate has no genetic link to the child because her egg is not used to create the embryo.
Legal Considerations
Many states do not recognize surrogacy contracts as enforceable, giving intended parents no legal recourse if the surrogate should decide to keep the baby. Laws in some states specifically prohibit all surrogacy. Other states prohibit the use of surrogacy for some groups (for example, same-sex or unmarried couples). Many states prohibit paying the surrogate. If the surrogate lives in a different state than the intended parents, the surrogacy and parentage laws of the state she will give birth in are the ones that will apply. Because parentage is not obvious in surrogacy cases, the intended parents may have to legally adopt their genetic child. If the surrogate is married, the surrogate's husband may also have parental rights, depending on the state.
Medical Considerations
Before becoming pregnant, the potential surrogate must be medically fit to carry a pregnancy. A surrogate may be disqualified on the basis of advanced age, poor physical condition, psychological problems or genetic disease. Prospective surrogates are screened by either the matching agency or the clinic providing the in-vitro fertilization or insemination services. Insurance providers sometimes specifically exclude surrogacy in their obstetrical policy, meaning they will not pay obstetrical bills incurred by a surrogate. Intended parents should consider buying extra medical insurance to cover the medical bills of the surrogate.
FDA and State Required Screening
The Food and Drug Administration (FDA) regulates the screening of egg and sperm donors involved in in-vitro fertilization. Because the FDA considers the intended parents to be the sperm and egg donors to the gestational surrogate, federal law requires that intended parents be fully screened and tested to prevent the transmission of infectious diseases to the surrogate. Although not required by the FDA, most fertility clinics will require a similar battery of tests for the surrogate to rule out infectious disease prior to becoming pregnant. Although FDA donor screening regulations do not extend to insemination procedures, state laws often regulate testing and screening of sperm donors whose sperm is used for artificial insemination.
Surrogacy Fees
Having a baby through the services of a surrogate is very expensive due to costs associated with medical screening, assisted reproductive services, legal fees to employ the surrogate and establish parentage and the actual fee to the surrogate for services rendered. Surrogates can be paid tens of thousands of dollars or more for their services. In some states, it is illegal to financially compensate a surrogate. In other states, compensation is allowed but is limited to the actual expenses incurred by the surrogate to carry the pregnancy.
Warnings
Before entering into any surrogacy arrangement, intended parents should consult with an attorney who specializes in reproductive law to draw up the surrogacy contract and adoption paperwork according to state law. Surrogate matching agencies abound on the Internet. Some agencies are reputable and some are not. It is important to find a knowledgeable attorney and assisted reproductive technology team to guide those seeking a surragote mother towards the more reputable agencies.
