Email: TASC@surrogacy.com Disclaimer
Author: Mark A. Johnson
- I. HOW TO USE THIS INFORMATION SOURCE
- II. THE SURROGACY TEAM
- A. Agencies and Surrogacy Locators
- B. Lawyers
- C. Psychiatrists/Psychologists/Counselors
- D. Medical Doctors and Technicians
- E. Hospital Staff and Administration
- III. HISTORICAL CONTEXT AND OVERVIEW
- IV. MEDICAL/INFERTILITY PRACTITIONERS
- V. SPERM, EGG, AND FERTILIZATION
- A. Securing Sperm
- B. Securing Donor Eggs (Oocytes)
- C. Securing Fertilization
- 1. Who May Fertilize
- 2. Cryopreservation
- 3. Implantation
- VI. SELECTION OF SURROGATE
- A. How to Locate Surrogate
- B. Married Surrogates
- C. Compassionate Versus Compensated Surrogate
- D. Where Child is to be Born
- VII. NECESSITY OF A CONTRACT
- A. Parties To The Agreement
- 1. Infertile couple
- 2. Surrogate
- 3. Surrogate's Husband/ Significant Other
- 4. Infertility Physician
- 5. Surrogate's Obstetrician
- 6. Psychiatrist/Psychologist/Counselor
- 7. Birthing Hospital
- 8. Governmental Authorities
- B. Preimplantation/Preimsemination Testing
- 1. Physiological Testing
- 2. Psychiatric/Psychological Evaluation
- C. Implantation/Artificial Insemination
- 1. Agreement to Adhere to the Instructions of the Infertility Physician/Clinic
- 2. Course of Treatment
- 3. Amount of Time Surrogate Shall Be Available for Implantation/Insemination Procedures
- 4. Decisions to Terminate Prior to Pregnancy
- 5. Sexual Abstention
- D. Pregnancy
- 1. Agreement to Carry the Child or Children Until Delivery
- a) Privacy/Roe v. Wade Issues
- b) Medical Emergencies
- c) Abstinence/Abstention
- d) Prenatal Care Compliance
- e) Cesarean Delivery
- f) Cooperation and Required Filing or Hearings
- E. Delivery/Custody/Post-Partum Care
- 1. Labor and Delivery
- 2. Place of Birth
- 3. Transfer of Physical Custody
- 4. Obligation of Infertile Couple to Assume Custody And Responsibility For The Child
- 5. Naming of The Child
- 6. Contingency For Death of Infertile Couple
- 7. Cryopreservation
- 8. Post-partum Psychiatric/Psychological/Counseling Care of Surrogate
- 9. Cooperation and Required Filing or Hearings
- 10. Establishment of Actual Paternity/Maternity
- F. Confidentiality
- G. Informed Consent
- 1. Disclosures to the Surrogate
- 2. Disclosures to the Wife of the Infertile Couple
- H. Compassionate Surrogacy
- 1. Support Obligation of Child Born Out of Wedlock
- 2. Child Abandonment
- 3. Abandonment of Pregnant Woman in Dependent Condition
- 4. Prenatal Support Obligation
- 5. Components of Allowable or Prohibited Expenses
- a) Medical expenses
- b) Legal expenses
- c) Lost wages
- d) Living expenses
- e) Compensation
- I. LIFE INSURANCE ON SURROGATE
- J. CUSTOMARY CONTRACT PROVISIONS
- 1. Choice of Law Provision
- 2. Notice Provisions
- 3. Entire Agreement Provision
- 4. Non-assignability Provision
- 5. Severability Provision
- 6. Equity or Specific Performance
- 7. Disclaimer
- VIII. PATERNITY/MATERNITY ADJUDICATION
- A. Adoption
- 1. Advantages of Adoption
- 2. Disadvantages of Adoption
- B. Paternity/Maternity/Surrogacy Adjudication
- 1. Advantages of Paternity/Maternity/Surrogacy Pro- ceding
- a) Truth
- b) Control by the Infertile Couple
- 2. Disadvantages of Paternity/Surrogacy Pro-ceding
- a) Timing
- b) Proof of Genetic Tie
- IX. EGG DONATION/CRYOPRESERVATION CONTRACTS
- A. Elements of an Egg Donation Contract
- 1. Identification of Parties
- 2. Establish Paternity/Maternity
- 3. Establish Procedures to be Undertaken
- 4. Informed Consent
- 5. Genetic Disclaimer
- 6. Relinquishment of Donor's Possible Rights
- B. Cryopreservation/Disposal Issues
- 1. Costs
- 2. Availability for Use by the Donating Couple
- 3. Informed Consent/Disclosure Issues
- 4. Period of Cryopreservation
- 5. Methods of Disposal
- a) Embryo Donation
- b) Cell Culture and Degeneration
- c) Scientific Study
- X. CONCLUSION
I. HOW TO USE THIS INFORMATION SOURCE
The following information is designed to create awareness of the numerous issues involving the law on surrogacy. It is by no means comprehensive. The issues enumerated here are not appropriate in all states nor at all times. Some states regulate the area of surrogacy; some do not; some ban it.
This paper is designed solely to point out potential pitfalls or areas that require the attention of couples considering surrogacy. Those who do embark on a brave new world, and must have some general appreciation for the issues with which they will be confronted, and possible options at those junctures.
This source is not designed to be "scholarly", but is designed for lay people, unschooled in these issues.
Of paramount importance is the fact that legal aspects must be considered an absolute floor to those entertaining the surrogacy option. Merely because a couple might be able to fit their particular surrogacy venture within the framework of the existing law in a particular state, does not justify ignoring the other essential disciplines inherent in surrogacy.
II. THE SURROGACY TEAM
Surrogacy is a team effort, requiring the coordinated efforts of trained, skilled professionals, along with the infertile couple desiring surrogacy, the surrogate, and the surrogate's family. These professionals include:
A. Agencies and Surrogacy Locators
For those who can afford the option, use of agencies makes abundant good sense. Agencies are skilled in coordinating the surrogacy process, from initial locating of surrogates, through the counseling of all involved following the birth of the child. Specifically, the agency is skilled in answering inquiries, mediating, areas of potential conflict, addressing sensitive areas, projecting course of events during the surrogacy, and in assisting the surrogate and the infertile couple in the separation and transition following the birth of the child.
The often considerable cost of using agencies prices surrogacy beyond the reach of many infertile couples. These couples must then locate a surrogate, who many times is a family member or friend. If this is not a possibility, the infertile couple must seek a third party to serve as the surrogate. There may be prohibitions against advertising for potential surrogates, and there may be distinctions under local law between those willing to serve as gestational surrogates versus those wanting to be artificially inseminated. States may require the use of an agency or the employment of an attorney.
Once a surrogate is located, the infertile couple must assemble the surrogacy team of professionals in order that they perform their essential tasks. Some couples are better equipped to coordinate this undertaking than others.
B. Lawyers
Until recently, mankind's experience was that a pregnant woman was the mother of the child she was bearing. That is no longer true in the gestational surrogacy option, and the normal presumptions concerning motherhood (and how the law recognizes it)are not necessarily correct. The same holds true for oocyte (egg)donation.
Under normal circumstances, many states presume that a man who is married to a pregnant woman, either at time of conception or time of delivery, is the father of the child. This presumption would wreak havoc if left to stand unrebutted in the surrogacy context. Numerous other considerations follow in the body of the text which follows.
C. Psychiatrists/Psychologists/Counselors
Are all infertile couples candidates for surrogacy in its different manifestations? Once medical practitioners have addressed the physiological issues, what are the psychiatric and psychological issues?
Who is an appropriate candidate to be a surrogate? Does her husband or boyfriend concur? How is the pregnancy coordinated between the infertile couple, the surrogate, and the surrogate's family? How does the infertile couple bond with the child to be born? How is the surrogate assisted in the emotionally difficult scenario of parting with the child upon its birth?
What will the child be told concerning the circumstances of its gestation and birth? What interest does the surrogate, as well as the surrogate's family, have in monitoring the development of the child after its birth, considering the compassionate impulses which lead most surrogates to agree to bear and deliver someone else's child?
Obviously, these mental health practitioners are essential to the surrogacy process.
D. Medical Doctors and Technicians
These are the individuals who make surrogacy possible, in addressing the physiological, medical, and other reasons for infertility. They must conduct thorough profiles and examinations of the infertile couple, as well as the surrogate. They must screen for genetic as well as infectious disease. They must extract ova (eggs), fertilize them in vitro ( test tube ), and surgically implant the embryos into the uterus of the surrogate. Their options are as varied as the sources of infertility, and there are numerous treatments available, and constantly evolving.
In artificial insemination surrogacy (where the wife is the infertile member of the marriage, but her husband is capable of conceiving a child), the doctors must again screen for genetic, as well as infectious disease. They then use the husband's donated sperm to artificially inseminate the surrogate.
With traditional artificial insemination (where the wife is capable of conceiving and bearing a child, yet the husband is the infertile member of the couple), the physician, either alone or in concert with a reputable sperm bank, screens the donated sperm for genetic, as well as infectious disease, and artificially inseminates the wife.
In donor gestational surrogacy (where the wife's eggs(ova) are not suitable for conception, but where eggs (ova) are donated by a third party, fertilized in vitro, and the embryo is then placed in the wife's uterus in order to carry the child to term), the physicians screen the surrogate for genetic and infectious disease, extract the ova (eggs) from the surrogate, fertilize in vitro the donated eggs of surrogate with the sperm of husband, and place the embryos into the wife's uterus so that the wife carries the child to term.
Obstetricians and gynecologists are essential as in any pregnancy.
E. Hospital Staff and Administration
An informed and caring hospital staff is essential for the delivery of a child born through surrogacy, from accommodation of the infertile couple in the birthing process itself, to the establishment of procedures as to who will authorize medical treatment on behalf of the child, how birth certificates shall issue, and how the child and surrogate shall be discharged. Sensitivity to the novelty of the birthing arrangement, along with honoring the privacy expectations of those involved, are paramount.
In the event the hospital staff and administration is not informed or sensitive on surrogacy issues, the result is often robbing the infertile couple and the surrogate of the pleasure and anticipation of the birth of the child.
In sum, the building of a family should not hinge on mere matters of the law. Legal issues are essential, but not sufficient. Merely because a birth can be arranged under the laws of a particular state does not guarantee the successful building of a family.
Finally, it can not be emphasized enough that all involved should strive to avoid any legal disputes. Legal disputes are unpleasant enough in the "usual" context (and, hence, the high esteem in which some view lawyers); yet in the possible emotionally wrenching disputes involving the birth of a child, the last thing an infertile couple, a surrogate, or even an involved court wishes is to be confronted with a dilemma which would try the wisdom of Solomon.
III. HISTORICAL CONTEXT AND OVERVIEW
Author: Mark A. Johnson
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Marietta, GA
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