Email: surrogacydotcom@gmail.com Disclaimer
IV. MEDICAL/INFERTILITY PRACTITIONERS
At some point, the infertile couple will seek medical analysis as to the source of their infertility. (This outline will not address medical or pharmaceutical courses of treatment, except where there are legal components to the issues.)
The course of treatment requires, in many states, adherence to the concept of "informed consent". The notion is that in elective courses of treatment, the patient should be provided with sufficient information by the attending physicians so that the patient can make a knowing and intelligent decision as to whether to proceed with a particular course of treatment. The doctors or their practice group should provide information as to:
The steps or procedures to be undertaken;
The risk these courses of treatment hold to the patient;
The likelihood of injury and side effects; and
The likelihood of success of the procedures.V. SPERM, EGGS, AND FERTILIZATION
The securing of sperm, eggs, and fertilization are also subject to legal oversight.
A. Securing Sperm
Where the husband in the infertile couple shall provide the sperm, less legal oversight is required. The extraction is generally much more "low tech" than egg (oocyte) retrieval.
Where sperm shall be donated from other sources (such as a sperm bank), bare legal requirements should be considered an absolute floor. The sperm should obviously be screened for genetic components as well as the risk of sexually-transmitted disease. The warranties and disclaimers of the sperm bank should be thoroughly reviewed.
Many reputable sperm banks or infertility practitioners now require the freezing of donated sperm. In this manner, the sperm donor may be examined for infectious disease at the time of donation, and then reexamined several months later, prior to using the sperm. In this manner, any sort of infectious incubation period can be taken into consideration before the sperm is used.
The law may distinguish between donated sperm of a known source, versus that anonymously donated. Particular care should betaken to assure that sperm donated from a known source does not subject the provider to responsibility for any child to be conceived, nor does it confer any parental rights in the donor.
Generally, compensation of sperm donors is not prohibited.
B. Securing Donor Eggs (Oocytes)
Obtaining eggs (oocytes) is obviously a much more elaborate procedure, or, in the alternative, is inseparable from the pregnancy itself if the surrogate is to be artificially inseminated.
Treatment with pharmaceuticals generally accompanies egg donation, and the actual extraction of the eggs from the donor is an invasive surgical procedure. Licensed medical practitioners are required, and the course of treatment should be accompanied by compliance with informed consent.
As egg donation is of much more recent vintage, many states have not specifically adopted laws concerning it. As a matter of equal protection, it is justifiable to treat the donated female component (eggs/oocytes) in the same manner as the state would treat the donated male component (sperm). However, it is less likely that eggs would be from a truly anonymous donor and, hence, the same considerations would apply as for a known sperm donor.
As to compensation, if a state allows compensation to sperm donors, it would seem unlikely that compensation for donated eggs would be proscribed.
However, if fertilized embryos were donated, then compensation should be much more closely scrutinized due to some states' proscriptions against "baby selling" in the adoption context. Obviously, there is a distinction between a fertilized embryo and a born child, yet it must be remembered that the laws of many states have not been revised to reflect present medical technology. As terms such as "parent" are not precisely defined in many statutes, it could be argued that such compensation results in "baby selling", an act which in many states is a felony.
C. Securing Fertilization
Fertilization carries with it a panoply of legal considerations.
1. Who May Fertilize
Numerous states permit only licensed medical practitioners to artificially inseminate, and numerous states carry felony penalties for unlicensed or unqualified artificial insemination. Obviously, if the fertilization is in vitro, then it is presumed only licensed medical practitioners would be performing these tasks.
2. Cryopreservation
Often, eggs which are fertilized with sperm(embryos) require storage. This may be because a surrogate has not been located to carry the embryo, or initial implantation has not resulted in pregnancy and additional implantation cycles must be undertaken. Furthermore, the ovary stimulation induced by the medical course of treatment may result in a number of eggs being immediately produced, which can be preserved through cryopreservation for future use.
It is essential to reach agreement as to how any unused embryos will be treated. There is obviously a continuing cost to the reproductive clinic for preserving the embryos, and these fees must be agreed upon. Unused embryos could be potentially donated to others, destroyed, or utilized for medical research purposes. These issues need to be clearly delineated in the agreement.
3. Implantation
Ultimately, the in vitro-fertilized embryo will be implanted in the surrogate. This is an invasive medical procedure, and prudent fertility clinics/medical practitioners will (even if the law in the particular state is silent on this matter) require a contract between the infertile couple and the surrogate prior to implanting of the embryo.
The implanting procedure itself is subject to informed consent requirements and constitutes the practice of medicine which should be performed only by a licensed medical practitioner. Good practice would require proof of disclosure of possible genetic disease or condition.
VI. SELECTION OF SURROGATE
Author: Mark A. Johnson
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Marietta, GA
The information contained in the website may not be published, broadcast, rewritten or otherwise distributed without the prior written authority of The American Surrogacy Center, Inc. If you would like to include this information on your website, you may link to the page directly on our site.
Guest commentary and representations by others do not necessarily reflect the opinions of the principals of TASC, and should furthermore be independently verified.