Surrogacy – A Reliable and Successful Family Building Option

Surrogacy – A Reliable and Successful Family Building Option

A Legal Perspective

By Steven H. Snyder, Esq

Everyone knows a couple dealing with infertility and it’s often the unspoken “disease” in families. Despite many sensational media stories painting surrogacy in a negative light, surrogacy is a viable family building option for couples who need it. However, many couples just aren’t sure where to start this process.  

There have been various published articles about surrogacy and its possible effects on the resulting children, intended parents, and gestational carriers.

Many of these pieces cast fertility physicians, related professionals, and patients in the worst possible light. Riding on the heels of the “Octomom,” Nadya Suleman, and other highly publicized adverse outcomes, many reports fuel the misperception of the general public that these individual negative outcomes are representative of the practice of fertility medicine as a whole. They are not, yet they could easily lead to negative, overly restrictive legislation that limits the access of all patients to desirable and viable family-building alternatives such as surrogacy.

Neither fertility medicine nor its patients should be defined by rare negative outcomes. It took over twenty-five years of in vitro fertilization (IVF) for a patient with questionable judgment and suspect motives (Ms. Suleman) to come under the care of an unwise and irresponsible physician (Dr. Michael Kamrava) and to set the stage for a one-in-a-million physiological outcome (8 babies from 6 embryos) that was the Octomom case. This should not be the case by which thousands of responsible and successful IVF patients and cycles are judged. These relatively rare occurrences should not define infertility or the ethical standards of the professionals or intended parents who participate in and facilitate the process.

Many of these articles are negative pieces that scare intended parents and leave them thinking “What should we do next?” Surrogacy remains a viable and very successful way for couples to have the child of their dreams if it is done responsibly. However, many couples don’t know where to start once they are scared by reported stories of disputes, failures, and court cases. Nevertheless, these negative cases do teach us some lessons about how NOT to do surrogacy.

First, self-matched and do-it-yourself surrogacy programs are the most likely to break down, frustrate the parties’ original intentions, and cause negative legal and media outcomes. I don’t work on my car because it is too complicated for me to figure out. Any maintenance I perform will, undoubtedly, cause more harm than good. The same is true for surrogacy. It is even more complex than any modern automobile, combining medical, psychological, legal, insurance, financial, administrative and tax issues, just to name a few. Rather than substituting their judgment for a single auto mechanic, the intended parents are substituting their judgment for numerous medical, psychological, and legal professionals. Eliminating any one of these professionals can cause the program to fail unexpectedly, but inevitably. Any intended parent who tries to conduct a do-it-yourself surrogacy program is, quite simply, begging for trouble.

Second, finding a surrogate online at any mass Internet clearing house for surrogates is a very bad idea. There is just no way to be certain of the qualifications, suitability, or reliability of the surrogates who are marketing themselves there. Virtually all of the worst surrogacy cases that I have witnessed or heard of have involved either a relative or an online “independent” surrogate. The vast majority of suitable surrogates work through reliable agencies that carefully screen and prepare them for the process. Working through an agency provides only benefits with no detriments to any qualified surrogate candidate. Therefore, the surrogates who don’t work through reputable agencies but market online are often (but not always) those who cannot successfully qualify to work through an agency. That means that they may have significant physical, psychological, or legal conditions that should disqualify them from the process. The only way they can act as a surrogate is to circumvent the agency screening process and work independently. By circumstances and definition, online independent surrogates are more risky than well-screened, carefully vetted agency surrogates.

Third, every surrogacy program has countless steps that need to be done in a certain order and NONE of which should be skipped. One of them is thorough screening of the surrogate and complete disclosure of life facts and circumstances between the parties. A psychological screening by an experienced and qualified ASRM member social worker or psychologist is ESSENTIAL to the screening of any surrogate. The screening serves to educate her on relevant issues and evaluate her ability to complete the process as intended. It includes certain psychological testing and an analysis of the surrogate’s support and belief systems. In addition, a criminal background check, maternity record review, and insurance coverage review are critical parts of the surrogate’s qualifications that should be conducted. Surrogates who have criminal records, have been psychologically disqualified, or have had dangerous previous pregnancies or deliveries are not suitable candidates. Whether the parents should be screened is a subject of some additional debate since it bears on a couple’s constitutional right to procreate (to the extent that such a right exists, if at all). Some believe intended parents should not be screened since parents who have their children without medical assistance are not screened. In any case, screening of the parents will often identify and raise topics for disclosure to and discussion with the surrogate.

There is a right way and a wrong way to participate in a surrogacy program. Surrogacy is loosely regulated by practice and ethical guidelines promulgated by the ASRM. However, those guidelines DO establish reasonable parameters, which, if followed, lead to highly reliable outcomes. Surrogacy is still a very reliable and successful family-building option. Though there are no formal statistics, an anecdotal reference in an article published in 2002 indicated that contested surrogacies occur in less than one-half percent of all surrogacies. As far as I’m concerned, that evidences a pretty reliable process.

Whether there should be legislative regulation of fertility procedures to enhance the fertility physicians’ self-regulation through the ASRM guidelines is a question about which reasonable minds can easily differ. The American Bar Association Assisted Reproductive Technology Committee is currently grappling with these complex issues of appropriate and reasonable regulation. It is working hand-in-hand with the ASRM, patient organizations, and other professionals who facilitate fertility programs for aspiring parents. This is the only successful way to find a reasonable and effective balance between self-regulation and legislative regulation.

Surrogacy has resulted in hundreds of happy new families every year. Surrogacy is nearly always conducted in a responsible, reliable, respectful way by the professionals and participants involved. Do not judge a book by its cover, and do not judge fertility medicine or surrogacy by the rare exceptions.

 

Steven H. Snyder, Esq. is a legal expert on issues surrounding Surrogacy, In Vitro Fertilization, and other fertility issues.