Choosing a Couple For Surrogacy – A Surrogate’s View

My name is Kara and I am a 2X surrogate mother with CSP (The Center for Surrogate Parenting, Inc.). I have recently started working for CSP as a Surrogate Mother Coordinator and assist prospective surrogates through the application process.

Both of my surrogacies have been with couples overseas. I chose my couples mostly on gut instinct, but there were some common things I tended to look for. Both my couples are different in personalities and situations, but with open communication with each couple, we have been able to form a wonderful relationship and method of communication that works for us.

One of the most important and lasting decisions you make as a surrogate is which couple you choose to help create a family. There are many factors that go into this decision, many of which the surrogate is not aware of, and are made behind the scenes within the agency. However, usually a surrogate is given a choice from 2-3 couples.

How do you know who is right for you? How do you know what to look for? I think much of the choosing is “gut instinct”, but here are a few things to consider.

Shared interests – do you have some similarities? It is not necessary to be involved in the same things, but are you interested in some of the same things (reading, outdoor activities, crafts, movies, etc.)? There will be times when you and your couple will be together in social settings, it is helpful if you have something other than the surrogacy to discuss comfortably.

Cultural awareness – it is important to be aware of some cultural differences. This is not to say that people from different cultures cannot get along well, it is just important to note that someone from England might be more reserved in their emotion, while someone from New York City might be more outspoken. These are stereotypes that might not hold true, but it is important to be aware that previous life experiences play a part in shaping the views and lifestyle of a couple.

Gay couple – Many homosexual couples wish to have a family. If you have indicated that you do not wish to work with a gay couple, this does not apply to you. However, if you are willing to help a gay couple, most of the time they are men. It is important to note that many of these couples will depend on the surrogate for medical information regarding women’s bodies and reproduction that you, as a surrogate, will think common knowledge. They may not know much about medical procedures or pregnancy and it will be helpful for you, as a surrogate to be sensitive to this and give more information. Also, there maybe some of your friends or family who don’t agree with homosexuality, so you will need to consider how you will handle any comments or questions that might arise given the unique nature of this surrogacy.

Couples wanting another child – Some couples are wanting to have a child to start a family and others are hoping to expand their family by adding another child. Sometimes the couple has worked with a surrogate previously. Other times they have adopted or have had a successful pregnancy for their first child. How will you feel about being the second surrogate for this couple ? Is it your personality to feel insecure or competitive? If so, this might not be a good fit for you.

Overseas vs. United States – Do you want to meet some people from a different country? Often the surrogate does not see this couple as often, but the visits from the couple tend to be longer (the couples fly in for transfers or ultrasounds and stay for a few days giving you time to get to know them). If you choose a couple from an area close to your home, you might see them more often (at each doctor’s visit), but might not get as much “quality” time with them as they are busy with their own lives on a daily basis. Are you concerned that a near-by couple might want more of your time than you are willing to give?

Reason for infertility – There are many reasons for a couple to be infertile. Does it matter to you what the reason is? Do you feel more connected to a person who has had cancer, for example, or does it make you worry that she might get sick again in the future? Do you feel empathetic to someone who has lost multiple pregnancies or someone who has unexplained infertility?

Personality – Does the intended mother describe herself as controlling or intense, or is she laid back and relaxed? Matching two controlling individuals together in such an emotional journey might not be the best idea.

Expectations and Wishes – Often in a couple’s profile, they will indicate what they are expecting or hoping the surrogate/couple relationship will involve. Do they want daily communication when you were hoping for once a week? What are the expectations for communication after the surrogacy is complete? Are they wanting to disappear and you were hoping to get pictures and updates every couple of months? If possible, it is helpful to have similar expectations.

These are some things to consider when looking at a couple’s profile, but no list can be comprehensive. As I mentioned above, many times, a surrogate will receive 2 or 3 profiles to choose from and one will just “stand out” above all others, and she might not be able to say why. Intuition or “gut instinct” may be based on very subtle cues from the application and is often an important indicator. Another important factor to consider – does your spouse, if you have one, have an opinion? This is something that you both will be involved in and it affects both of you intensely – does he have an opinion?

Choosing a couple to work with is a very important step in your surrogacy journey, and not one to be taken lightly. It is also a very exciting and fun time! Consider each of the above topics, but most of all, go with your instincts and your journey will hopefully be a rewarding one. Remember, each person has their own personality and every relationship is not perfect all the time. Each couple is to be valued and each one has experienced significant pain with their infertility. In the end, the surrogacy will be what you make it, and despite any ups and downs, you are helping an infertile couple create the family they so desperately desire.

Author:
Kara Byrd
Surrogate Mother Coordinator
Center for Surrogate Parenting, Inc.

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CSP’s Surrogacy Experience Really Counts

The following comment from another agency was recently shared with us:

We have found that our chief competitors do extensive prescreening before a match.  This is a way for them to charge you more up front, give you a false sense of security and in the long run, end up having no extra added value.  The medical screening could be different when it comes time to match the Surrogate.    Also, the very involved psychological screening isn’t necessary and drives up your costs; our screening process is so involved that we’ll pick up psychological problems before matching.  Finally, they’re very concerned with the Surrogate’s needs and not so much with the Intended Parents’ needs; we strike a healthy balance between the two.

This from an agency who claims to have been in the business in the field of surrogacy for 6 years and whose experience is based upon the fact that they became parents through surrogacy.  Their lack of experience and knowledge is rather startling. 

The following are our responses to each of those comments:

1. 1.     Extensive prescreening is a way to charge you more up front:

All screening of a Surrogate Mother and her husband/partner, if any, is an expense the agency must incur.  If the Surrogate Mother does not pass psychological or medical screening, gets pregnant during the screening herself, changes her mind about participation in surrogacy, her financial circumstances change, she changes jobs and cannot take the necessary time off work needed, she needs to move to a different state, she divorces or there is illness in the family, etc., then the entire costs of all of her screening are borne by the agency.  It is unclear what they meant by “This as a way of charging more up front.”  Quite the contrary, does it make more sense for an agency to undertake minimal screening up front and pass the entire risk on to the Intended Parents? 

Secondly, all Intended Parents pay for the screening costs of the Surrogate Mother they work with.  Ultimately all Intended Parents will be billed for or have to pay directly for the costs of psychological screening, social disease testing, an appointment with a reproductive endocrinologist to evaluate her uterus and approve her to proceed with their program, and a background check. This is completely standard for EVERY surrogacy agency.

Therefore the only difference to be considered is WHO pays the costs of those candidates that do not pass the screening process.  In CSP’s program, a surrogate candidate that does not pass any stage of the screening  process is a cost incurred by CSP.  In other programs the cost is borne 100% by the Intended Parents.  Depending on what stage in the screening process the prospective Surrogate Mother reaches before she is deemed ineligible to participate, the prescreening costs can run anywhere from a few hundred dollars to approximately $4,000.00.  The upper figure is reached if the surrogate and her husband are completely psychologically screened, have undergone all social disease testing, background checks are completed and the surrogate was seen by an reproductive endocrinologist for her screening (including laparoscopy, etc) and she then decides not to continue as a surrogate  mother.

 

1. 2.     Giving a false sense of security … end up having no extra added value

This statement is blatantly inaccurate.  What false sense of security can there possibly be in being matched with a Surrogate Mother and her husband/partner who is 100% psychologically screened, has undergone full social disease testing, completed her background check and been approved by a reproductive endocrinologist?  It is almost impossible to imagine that an agency is so lacking in knowledge and experience that they would ever utter such a shameful statement.  The value of a prescreened Surrogate Mother is immense, compared to that of a prospective Surrogate Mother who happened to complete an online questionnaire a week ago and was interviewed over the phone by an agency staff member whose only qualification, is that she was a Surrogate Mother once before.

1. 3.      The medical screening could be different when it comes time to match the surrogate.

What CSP does is an initial screening with the Surrogate Mother and her partner to clear her for participation in our program. These tests are then transferred to the doctor’s office once the Surrogate Mother is matched and the doctor has the case. The IVF doctor will have additional testing for the Surrogate Mother, but that is in addition to what CSP has already done and the Intented Parents are not paying again for those same tests.

1. 4.     The very involved psychological screening isn’t necessary

Of all the other statements this agency has made this is probably the one that causes us the most concern.  Are we to believe that they do not have their surrogate mothers undergo psychological screening by an independent licensed mental health provider?  This cannot be possible.  Do they claim that their apparent 6 years of experience equals that of a professionally trained psychologist or licensed psychotherapist with years of experience in the field of surrogacy?  Going back to the famous Mary-Beth Whitehead case out of NJ to the more recent tragic surrogacy case featured on the Dr. Phil show, it is painfully clear that surrogacy cases can go wrong, wreck lives and destroy a childhood when psychological screening is not performed and counseling is not available throughout the pregnancy.

1. 5.     More concerned with the surrogate’s needs than the Intended Parents’ needs.

This is a statement that causes us to shudder.  Is it not in the interests of the Intended Parents that an agency take good care of their surrogate mother?  It is important that an agency deals with the needs of a Surrogate and her family so that these needs do not become overwhelming or become the burden of the Intended Parents.

Most agencies have a case manager – which is typically a prior Surrogate Mother – who is the contact person between the Intended Parents, the Surrogate and the agency.  CSP believes that each party needs a person whose sole responsibility is them. CSP has a case manager that works exclusively with Intended Parents.  The Surrogate Mother has a separate case manager who works with her.  The two case managers consult once a week with the counselor on the case. The counselor is a mental health professional – psychologist or psychotherapist – whose offers counseling, guidance and support to both the Surrogate Mother and the Intended Parent. 

Therefore the statement that CSP is more concerned with the needs of one party over the other is ridiculous. The Intended Parents have a representative, the Surrogate has a representative and both parties have a full time mental health professional working on their case. 

With other agencies if the Intended Parents do not get along with their case manager, they have no alternative.  That is the only staff member available to them. Their only choice is to retain an independent mental health professional at their expense to coordinate between them, their Surrogate and their case manager.  That cost would be an additional cost for the Intended Parents.

The danger lies in what an Intended Parent does not know about the surrogacy process.  CSP offers 30 years of experience.  In that time we have gained the experience from over 1,500 pregnancies, and we have dealt with couples from a variety of countries and cultures.  There is simply no substitute for experience.  CSP offers more experience than any other agency in the entire world.

Why You Should Put Your Money Where CSP’s Mouth Is

Financial Reasons to Retain CSP

By Molly O’Brien – Trust Coordinator

Choosing an agency to help you create your family is one of the most important decisions that a couple can make.  Not only is it a huge personal decision, but surrogacy is an expensive undertaking.  The best thing a couple can do is choose an agency that offers them the most for their money and prepares them for the financial aspects that a couple may not even realize exist.  Agencies sometimes can manipulate the costs so they look cheaper than any other agency.  CSP has chosen and continues to choose to be honest about costs.  Do your homework and make an Excel spreadsheet of costs that are included and those that are not.  Being informed helps you make the best decisions.

The biggest surprise that I hear from couples in our program is that other agencies were not honest with them about the costs.  In other words, the cost projections the couple received to “reel them in” were not realistic.  Often times those projections did not include all of the surrogate mother’s information.  For example, a client came to us with a cost sheet from another agency.  The agency based their costs on a surrogate mother who was a stay at home mom, had her own medical insurance that covers surrogacy 100%, and had zero additional childcare costs.  This scenario is unlikely, if not impossible.  A surrogate mother who does not work, provides her own childcare for her children.  Therefore, at the very least her “maternity leave” would require childcare assistance.  The cost of childcare is often the same as lost wages, as well.  So this couple was deceived by an unrealistic hypothetical surrogate mother, and that estimated cost of deception would be $3,000 to $6,000.

Next, the couple was deceived by the way the agency presented the insurance.  Many agencies do not review surrogate mother insurance.  Furthermore, the lion’s share of insurance policies do not cover maternity 100%.  All insurance policies have a “maximum annual out of pocket” which is the yearly ceiling of charges a member would have to pay.  This couple was not told about this cost which this surrogate would likely have attached to her.  This deception is estimated at $4,000.

Of course there are numerous other ways other agencies can present financial information to get a couple to work with them.  There are the medical costs for screening, the medical costs for the IVF, and the monitoring, legal fees, psychological aspects that are not disclosed or discussed.  Had this couple worked with that agency, they would have been sorely surprised about all of these costs that would pop up along the way.

The point is this: at CSP you pay for an agency to use their experience to teach you what you need to know so this process can be smooth and you can enjoy your journey to parenthood.  I personally prepare the cost sheets for my surrogate mothers and I evaluate their paystubs, their spouse’s paystubs, and their childcare situation.  Furthermore, all insurance policies are evaluated by an independent attorney.  When you are presented with a surrogate mother in our program you can rest assured that all bases are covered.  CSP has been doing this for over 30 years. We use that expertise to best equip our couples for the journey.

Financial Line Item	CSP	Other Agency	Notes
Administrative fee to open trust account (sometimes called an “escrow set up fee”)	$0.00	$1000 – $3,000	CSP includes this fee in our professional fees, you are not charged separately.
Charge per check	$0.00	$25.00/check	What this means is that each check someone writes from your account costs you $25.00. With a routine pregnancy, including pregnancy fees, average expenses prior t o pregnancy and medical costs this could be $2,500.  Typically, a minimum of 100 checks are written over the span of a typical pregnancy.
Lost Wages	At least 8-10 days (for pre transfer medical appointments and 6-8 weeks of maternity leave)	Agency does not usually budget for these wages	What we see with many other agencies is that they do not ask for lost wages until their surrogate mother is farther along in the pregnancy.  Rather than telling you first that these are anticipated costs, the other agency “holds you hostage” once you are already pregnant.
Medical Costs for Transfer	$4,000-$10,000 for your surrogate.	Agency does not account for	The average cost for an IVF cycle is $18,000 to $22,0000

Some Medical Aspects of the Surrogacy Process

By Marjorie Simpson, CSP’s Medical Coordinator

Part of the process of becoming a participant in CSP’s program includes medical testing for the surrogate and their spouses/partners. Occasionally, we see an abnormal result that is surprising because of the generally healthy, young population we are testing. These abnormal results are sometimes the result of the person taking supplements. It’s very important to note if you are taking supplements, and to discontinue use weeks prior to taking your lab tests.

Below are excerpts from a very informative article at http://www.clinlabnavigator.com that illustrates how OTC supplements can affect test results.

Recent surveys indicate that more than 50% of the population use some form of complementary and alternative medicine.   In the US, the sale of herbal medicines now exceeds $4 billion per year. Marketing campaigns imply that any natural product is safe. However, herbal medicines are classified as dietary supplements and do not have to be proven safe before being released into the marketplace.

Many herbs have been associated with adverse test results. Abnormal results may occur by any of the following mechanisms:  Assay interference (the way they actually analyze the test being affected by the supplements in the specimen); Herb-therapeutic drug interaction (the supplement may decrease the efficacy of your prescription meds, or increase their effect in an adverse way); Organ toxicity (the build up of the supplement in your system may become toxic as your body is unable to metabolize and expel it) 

For persons taking seizure meds such as phenobarbital or phenytoin, herbs like Evening Primrose, can decrease the drug’s level in your system by 40%.  For persons taking warfarin, some herbal meds interfere with its anticoagulant properties and can increase the risk of bleeding by inhibiting clotting.

Some herbal medicines, like Kava, are hepatotoxic (toxic to the liver), and can cause an increase in ALT and AST (liver function tests).

Kelp is promoted as a thyroid tonic and anti-inflammatory medicine, but Kelp tablets contain substantial amounts of iodine, which can cause hyperthyroidism.  T4 and T3 are increased, and TSH is suppressed.

Chromium is a trace metal that helps to regulate glucose metabolism. Athletes and bodybuilders take chromium supplements to enhance performance, but large doses can induce hyperglycemia (increased glucose in the blood). In contrast, ginseng has been associated with hypoglycemic episodes (not enough glucose in the blood).

An additional risk of taking supplements is unexpected lead poisoning that may occur from herbal medicines contaminated with lead.  Some Chinese herbs have been found to have lead content as high as 20,000 ppm, which translates into approximately 200 micrograms per deciliter. The US accepted blood lead levels are less than 20 micrograms per deciliter for adults and less than 10 micrograms per deciliter for children.  Lead has no role in the body, and its harmful effects are myriad.

Generally, a balanced diet and a daily vitamin will provide your body with what it needs for optimum health, but if you do take any supplements, please be aware of the possible side effects and adverse reactions, not only the supposed benefits of it. And if you are doing any kind of lab work, or having any kind of surgery, let your health professional know and discontinue use a few weeks before your procedure.

Surrogate Parenting……the Parenting Part

By Fay Johnson

The majority of the focus in discussions about surrogacy is the creation of the children.  Or the legal issues determining who are the parents.

After all is created and granted, what we are left with is a family.  Formed in an unusual way perhaps.

I have been a Mother for the last 20 years now – to a daughter who is 20 and a son who is 16 – born by wonderful surrogates at CSP.  I definitely know that parenting these children has been the joy of my life – so far!—-

I do think my parenting has been somewhat different due to the special beginnings.  There is no question that I was a most enthusiastic Mother – I had waited 43 years to be able to hold our baby daughter. Then 47 when my son was born.  So when I turned  50, I had a three year old!

Perhaps what time had robbed in the form of physical energy was more than generously made up for with an extra helping of desire to be a good parent.  I wanted to connect to my children on as deep a level as I could.  I wanted to carry them and read to them and play with them…I wanted to have that time of my life – spent TOTALLY with them as a family.  I didn’t have nannies or babysitters or family who shared the duties with me.  I wanted it to be my hand that stroked my daughter’s head that she would remember… I wanted it to be my name called in the morning to get them out of the crib.  I wanted to be the one that they would remember.

The surrogacy experience has added other twists and turns – they once or twice informed me that they didn’t have to do what I said because I “wasn’t their real Mother anyway.”  The pain of those words cut like a knife but we worked our way through – with truth, with explanation, with understanding.  Understanding  that everyone came together, in a team effort to give them a life.  “You may not be from my flesh and blood, but you are more, you are from my heart.” 

They understood my passion to have them exist. They have recognized my sheer joy that they are my children…or rather perhaps, that I got to be their Mother.

Today there is a great deal of focus on surrogacy being done in India.  How  “wonderful it is that it is so much less expensive than in the U.S.”  The women are recruited from small, outlying villages.  Their husband’s are deciding that they will go away for a year to become a surrogate.  They will probably not get to see their children during the year that they are away in a commune full of other surrogates. If they return and their husband’s Mother finds out that they were a surrogate, they risk being ostracized, and physically harmed.  “But they earn so much money for this – it is so much money in India…what a wonderful opportunity “ I hear people say.  I hear trained mental health professionals who work in the field of surrogacy casually speak of these circumstances as “not such a bad thing – the facility can be lovely.”

I am appalled.  In the 80’s when I was trying to educate women’s groups about surrogacy, I was a member of the Greater Los Angeles Coalition for Reproductive Rights. I was actually on the Steering Committee.   I was booed for being a pro-surrogacy advocate – and treated as though I was simply a white woman who somehow forced some poor, third world woman to bear my child.    It was interesting to me that the group was, in my opinion, really a PRO Abortion Group.  These were the makers and shakers of Los Angeles professional women – straight and  gay… the Women’s Libers.   I believe that the true agenda was abortion rights – which is fine, but don’t bill yourself as “reproductive rights advocates”.  In actuality, I think most of these women DIDN’T want children so they wanted to make sure that if they got pregnant, they could always have a legal abortion.   I was so offended by the other member’s attitudes about surrogacy that I asked if I could give a presentation to help the group understand the issue.  My position was that surrogacy IS a pro-choice issue – the choice to HAVE a child – even for another woman.  We’ve come a long way in the 18 years since I was a member of the organization.

 Or have we?  It feels to me that the way surrogacy is done in India is what all those people were fearful of back in the 80’s and 90’s.

I am eternally grateful that my children were born by surrogates who were allowed to decide to be a surrogate by herself.  Whose children were not deprived of their Mother for a year.  How is THAT good for these families?  How is THAT good for these children?  To have their Mother just disappear for a year.  I am grateful that my surrogates were women who made this choice, who lived their normal lives with their children and husband’s.  Basically, that no one was forced to do this for me. The leaders in India of the surrogacy industry claim that “our cultures are so different, so it doesn’t matter that the women are taken away from their own families for a year”.   Wrong is still wrong, and that practice isn’t good for children – no matter where they live.

My children are proud that they  were created through a loving, “whole” surrogate mother. ..as opposed to what I think of as a “slave”.    Each of them has met their surrogate on several, if not many occasions – along with their families.  We all know each other, rather than it being anonymous.  Everyone feels that they made a wonderful, and meaningful contribution to the world being a better place.   I cannot imagine my children feeling good about their origins had they been born into the circumstances that currently exist in Indian surrogacy.  I cannot imagine that the children born through Indian surrogacy will be half as well adjusted on the subject as mine are.  I cannot imagine that they would be as proud of how they were created.  Parenting them might have been much different for me if I had felt that another family suffered – regardless of the money – because their Mother was taken away to  bear children for me.

I simply cannot imagine justifying that to my children as they grew up.

Should Surrogacy be Taxed?

Nothing is certain but taxes and death.   So the old adage goes, and it holds true even today.  It begs the question, should surrogacy be taxed?  A recent journal article written by Bridget J. Crawford, Professor of Law at Pace University in New York, argues that surrogacy falls within the realm of taxable services.   She cites precedents that found selling bodily fluids to be taxable.  The first one, Green v Commission (1980) determined that a taxpayer who regularly sold her plasma, was in the “business” of doing that, and while she was entitled to take deductions off her taxes for the costs associated with the plasma deposits, such as mileage and groceries, she was still required to pay taxes on the money she earned from the deposits.  A second decision reached by the Department of the Treasury found that selling breast milk was also taxable, as the taxpayer selling her breast milk was selling “inventory” (Brown, 2010; Internal Revenue Service Gen. Couns. Mem., 1975).

There is the belief that surrogacy should not be taxed because the surrogate must endure pain and suffering in order to go through a pregnancy on someone else’s behalf.  U.S. income tax law excludes from gross income any amounts received by a taxpayer on account of personal physical injury.   This means that the surrogate would not pay taxes on her fee because the pregnancy would be considered personal physical injury.   The argument against that, however, is that the surrogate pregnancy can not be considered personal physical injury when the surrogate mother contracted with the intended parents to undergo a pregnancy.  But what if complications arise from the pregnancy?  Complications such as the surrogate enduring a miscarriage, having to live through months on bed rest, or in the worst case, needing a hysterectomy and thus preventing her from carrying ever again, are all potential outcomes to a pregnancy. When the surrogate signed the contract, these possible eventualities were probably touched on, but likely dismissed as being improbable.   It is therefore acceptable that the pregnancy be considered personal injury as the surrogate is accepting the fact that there could be extremely dire outcomes and is accepting of that possibility.

Ms. Crawford’s argument goes on to discuss her belief that taxing surrogacy would legitimize the practice.   She asserts that the tax would enhance the well-being of women by making it part of the public dialogue.   “Bringing surrogacy out of the shadows and into the sunshine of law is a step toward recognizing the value of reproductive work…Tax law and the enforcement of tax laws relating to surrogacy is a part of the progress towards justice for women…” (Crawford, 2010).   In this statement it is apparent that Ms. Crawford believes her argument is helping surrogates, and women in general.

Enforcing a tax on surrogacy would ultimately hurt all parties involved. Surrogates may not want to undergo the process, for fear that they will not receive all the money they are paid because they will have to pay taxes on it. Additionally, they could have ethical opinions that cause them to not want to pay the government for something they did with their body with altruistic intentions.   Intended Parents will have a hard time, too, because the surrogate’s fees will need to be increased to account for the amount she will need to spend on the tax.   This in turn could make it cost prohibitive for the Intended Parents.   Finally, it will hurt surrogacy agencies, because it could lead to fewer surrogates and fewer Intended Parents working with an agency, choosing instead to try to do everything “under the table” to avoid the tax. Taxing surrogacy is not socially sound and should not be enforced.

Crawford, B. (2009). Taxing surrogacy.

Comptroller General of United States, General Accounting Office Report (1975, 4 November).

Green v Commissioner, 74 T.C. 1229, 1234 (1980).

“The Little Couple” returns on TLC for season 2. Premiers on Tuesday, June 1st at 10/9c

“The Little Couple” returns on TLC for season 2. The first episode premiers on Tuesday, June 1st at 10/9c. Bill & Jen will make an announcement about a big step in their lives. Tune in and share their news. Please check your local listings for “The Little Couple” on TLC.

At the end of last season, we left Bill and Jen after they moved into a rental house, started plans to custom build a new home and most importantly, they were considering their family building possibilities.

During last season, Bill and Jen were looking at their options for having a baby. Jen had some specialized medical testing to determine if she could safely carry a pregnancy. Unfortunately, this would not be an option for Jen since it was determined that a pregnancy would compromise not only Jen’s health but the baby’s as well. That is when Bill and Jen started to seriously consider surrogacy and adoption.

A major step in their research was visiting the Center for Surrogate Parenting to be educated about the surrogacy process. This meeting helped Jen and Bill understand the complexities of surrogacy and the importance of working with the best professionals throughout their journey.

Now Jen and Bill will make an announcement about this big step in their lives.

Watch “The Little Couple” on TLC Tuesday, June 1st at 10/9c to share their news.

Jen is a neonatologist at Texas Children’s Hospital in Houston and Bill owns his own sales, training and telecommunications business in New York.

Ever since their marriage Bill and Jen have been striving to reach their dream of having a baby. However, Jen is only 3 feet 2 inches tall and Bill is 4ft tall. Jen knows that a pregnancy could prove difficult and even life threatening because of her tiny stature but that has not stopped the little couple from dreaming of becoming parents one day. While many women with dwarfism are able to carry pregnancies to term, this is not the case for Jen. Her form of dwarfism (spondyloepiphyseal dysplasia, or SED), as well as the many surgeries she has had to endure since childhood could make it potentially life threatening for Jen to be pregnant and deliver a healthy baby.

For more on “The Little Couple” go to: http://www.creatingfamilies.com/home/content_detail.aspx?Id=209

It’s a girl, you’re the father and she’s keeping the baby

“It’s a girl, you’re the father and she’s keeping the baby.”

“I found a surrogate online.  We had a great experience with our first surrogate but for medical reasons she could not help us again.  We decided to do another surrogacy for our second child.  Then her attorney called me and said “It’s a girl, you’re the father and she’s keeping the baby.”” A statement by Tom Lamitina, a father of two, his son that he and his wife are raising and a daughter that their surrogate mother is raising.

Case # 1: The surrogate mother’s name is Stephanie Eckerd and she delivered a baby girl in May 2007.  Emma Grace was conceived with Stephanie Eckerd’s eggs and Tom Lamitina’s sperm.   This kind of surrogacy is termed Traditional Surrogacy or Artificial Insemination Surrogacy.   Florida law gives Eckard the absolute right to change her mind and keep the child for up to 48 hours after the birth. 

According to the Lamitina’s attorney, Eckerd advertised herself as a surrogate mother online and stated she had been a surrogate mother before.

Case # 2: Shelly Baker advertised herself online as a two-time prior surrogate mother willing to help another couple. Ms. Baker stated that she wanted to help a Christian couple.  Amy Kehoe saw the message and was drawn to the fact that Shelly lived only 2 hours away.  They traded email messages and phone calls and met for dinner before agreeing to go forward with the surrogacy.

In July 2008, Shelly gave birth to twins and the Intended Parents. Amy and Scott Kehoe took their twins home.  A week later all parties returned to court to transfer guardianship to the Kehoes.  During the hearing the judge asked several questions including psychiatric history and legal infractions. Amy stated she had a psychotic disorder not otherwise specified.  She had been under the care of her doctor for 8 years.  She sees her psychiatrist once very three months and takes medication every day.   Before her diagnosis, Amy self medicated and it was this self medication that was the reason for charges of cocaine use and driving under the influence.  However, Ms. Kehoe’s psychiatrist wrote a letter stating she would be a good mother because her disease had been fully controlled for eight years and she currently had no symptoms.

Ms. Baker said she was stunned at the disclosures of the mental illness.  Ms. Baker said she had no prior knowledge of this condition and it should have been revealed to her from the outset.  She became concerned that Ms Kehoe might relapse and be unable to take care of the twins.  One month after the birth of the twins, the Kehoes were forced to say goodbye to their babies and witness Ms. Baker drive off with them.

Two surrogate mothers, two different kinds of surrogacy, children not being raised in the homes they were intended to be raised in, a media circus, what went wrong?

The main thread connecting these two cases is the absence of professionals.

1. Both Stephanie and Shelly were repeat surrogate mothers and did not participate in psychological screening. There is no guarantee of performance just because she has done this before.  The first issue a counselor will address is why she wants to do this again?  What happened during the first surrogacy that she feels she never attained her goal and wants to try again?   What was the relationship like with the couple?  Interesting to note that Shelly Baker talked about calling her couple at 3 AM and asking them to bring her Tacos because she had a craving. Shelly said this was her way of allowing the couple to enjoy the pregnancy.  Perhaps Shelly craved attention and wanted to demonstrate her power instead of her craving for Tacos?  Most definitely behavior that would cause a counselor to carefully re-evaluate a candidate.

 

1. None of the parties completed an intake questionnaire. Remember those long forms you have to fill out for a new doctor?  That is similar to an intake application.  Most agencies have intake forms/questionnaires.  Included are questions about mental health, mental health treatments, prior psychological appointments, outstanding child support payments, etc.  The questionnaires are a tool used by mental health professionals to enable them to ask the right questions.  As an example: say a couple states they saw a therapist when they lost a pregnancy at 24 weeks.  Of course this is a very sad situation, but what it does is open the door to discuss the causes of the loss, was there testing done, did both parents or just one go to counseling, how long did they attend, was medication prescribed and is medication ongoing, etc.  Not only does the counselor gain valuable information, she now has a name of a counselor she can consult with if necessary and she can prepare the surrogate mother that perhaps this couple will be more cautious until the pregnancy passes the date of the last loss.

 

1. There was no psychological evaluation of the couple.  This is really an essential part of surrogacy.  We understand that every couple pursuing surrogacy desires to have a child.  However a skilled counselor can help a couple or an individual evaluate whether they can let go of so much control.  Think of it this way:  an infertile woman has gone through endless failed treatments and perhaps spent years trying to have a baby, a baby she wanted to carry herself.  Along comes a lovely surrogate and achieves a pregnancy on the first attempt. She makes it seem so easy.  The Intended Mother may feel resentment towards someone who was able to do what she could not. These feelings are not wrong and a person is not ungrateful in feeling these emotions.  They are normal, healthy emotions and a counselor can help process the couple so they understand and can cope with such feelings. A counselor will also ask questions about mental illnesses, treatments past and present, prescription medication past and present and she will discuss whether counseling was sought in the past and if any is ongoing.

 

1. There was no consultation with an attorney experienced in surrogacy prior to starting the medical procedures. This is a crucial aspect to pursing surrogacy.  It is really a simple notion – do not do surrogacy in a state where you will not be considered the parents.  In both of the cases highlighted above, the laws were not favorable towards the Intended Parents.  In Michigan commercial surrogacy is punishable by five years in prison and a $50,000 fine.  Shelly Baker was not compensated for the surrogacy, except for medical bills and expenses, and is therefore considered compassionate surrogate.  However, Michigan law states that surrogate contracts are void and unenforceable.  Neither of the Kehoes is genetically related to the children they created leaving them without a valid claim for the children. Ms. Baker gave birth to the children and therefore was the only person that had a claim to parent these children.    In the Florida case, Stephanie Eckerd was biologically related to the child she was carrying.   Traditional surrogacy laws are clear in Florida; the surrogate mother has 48 hours after birth to change her mind, even if there is a signed contract.   Neither one of these cases would have existed if the Intended Parents had sought legal counsel and followed their advice.  As lovely as both the surrogate mothers appeared to be and despite the fact that they had been surrogate mothers before, a qualified attorney would have counseled both couples to seek a different surrogate mother in different states.

 

Surrogacy is about creating layers of protection.  The state law is one layer, the legal contract is another layer, the psychological evaluation of the Intended Parents another, the evaluation of the surrogate mother and her husband another, ongoing counseling another, and so on. The above four points are all important and offer layers of protections.  Both these cases would not exist had each couple ensured they complied with this list and availed themselves of the layers of protection an agency offers.

People lie.  Some people do not mean harm to others, but they lie, small lies, but lies none the less.  Surrogate mothers lie about their medical history, that they had uneventful pregnancies, that they have never tried drugs, never had an affair.  Intended Parents lie about the true status of their marriage, that they will be respectful and appreciative to their surrogate mother, that they will always remember the gift she has given them, they lie about their drug history, about their finances, etc.  Not everyone lies of course, but even one little lie or deliberate avoidance of telling the truth can have such negative impact on a surrogacy pregnancy.  When two people are attracted to one another and one lies to the other, there is heartache, disappointment and lack of future trust.  The parties can simply walk away from their relationship,  However, when a surrogate mother is pregnant, no one gets to walk away.  A pregnant surrogate mother can either can come to terms with the lies a couple tells her, but still comply with the contract and simply wish she had made a better selection of couples to help.  Alternatively she may conclude that the lies are so material that she cannot comply with the terms of the contract.  Lives could be changed forever.

It is so very important that every surrogacy relationship is entered into cautiously.  Never, never enter a surrogacy relationship without all parties being evaluated by a licensed mental health professional with years of experience in surrogate parenting.  This is your insurance policy.  Be careful not to work with a mental health professional that claims he/she has years of experience.  Get it is writing that he/she has years of experience in the field of surrogate parenting.  Make sure you have a document that states he/she has acted as a counselor on over 100 cases or 500 cases.  Get it in writing.

The role of the counselor is to correct the misunderstandings, hurt feelings, and bad behavior and counsel everyone to understand, forgive, agree not to repeat and acknowledge that it is in everyone’s best interest to make this work.

Perhaps if Shelly Baker had access to a mental health professional she could have aired her concerns about mental illness.  Ms. Baker said she decided to keep the twins because of information that came to light about Amy’s mental health history that made her uncomfortable.  She said “I am not going to be one that’s going to feel guilty if something happens.”   It is perhaps reasonable to assume that if Shelly had the opportunity to discuss her fears and concerns with a counselor she was already familiar with and trusted, the case may have had a different outcome.  Perhaps Ms. Baker would understand mental illness, have allowed professionals to answer her questions and not judged an illness she did not even try to understand.

In the Florida case, there was a time when Stephanie Eckert did not know if the baby she carried was her boyfriend’s or the couple’s.  There was no counselor to help all the parties understand what happened and how the revelation destroyed the trust that had previously existed in their relationship.  Each party felt betrayed and there was no one to guide them in how to maintain a civil relationship.  Anger opened the door to poor communications, threats and statements that could be misunderstood and impossible to retract.  No one can guarantee that a different outcome would have occurred had a counselor been involved, but it is as certainty that a counselor would have prevented the writing of terrible emails and helped in calming everyone down, and focused attention on determining the genetics of the baby.

There are very few surrogacy agencies that have full-time mental health professionals working with them.  Do not be fooled by agencies that have a psychotherapist that screens the surrogate mother and is then available if ever needed.  A counselor who does not regularly meet with the parties will be ineffective in a crisis.  If a problem occurs, you need to be able to call a counselor immediately and get immediate action.  A counselor has not spoken to the parties for months it will take her several sessions to get acquainted with the case, the facts and the personalities involved before he/she can offer advice and guidance.  Valuable time will be lost and a possible solution may slip away.  One of the very few surrogacy agencies that has a full time staff of mental health professionals is the Center for Surrogate Parenting, Inc. (www.creatingfamilies.com)

Surrogacy done safely, surrogacy done right.

“We never even got a lawyer the first time,” Tom Lamitina, 45, said. “If you’re both on the same page, why bother getting an attorney?” Besides, he added, “If we did get an attorney, she could still change her mind at the end, so it wouldn’t matter if we had an attorney or not.”  No, Mr. Lamintina is wrong.  Had he worked with CSP he would have benefited from a private legal consultation and would only have been matched with a surrogate mother in a state that would recognize the Intended Parents as the parents.

“My husband and I would not do something like this unless we thought it was given to us to do, “Ms. Baker said.  “My belief is that God placed this on my heart for a reason.”  From the moment Ms. Baker decided to be a surrogate mother, she was determined to keep professionals out of the arrangement.  It was Ms. Baker who told the Kehoes she had been a surrogate mother twice before (in other words “you can trust me”), that there was no need for a psychological evaluation of any party or the need for an attorney.   It was Ms. Baker who decided Mrs. Kehoe was an unfit mother due to mental illness.  At no time did Ms. Baker consult with a professional to understand the disease. She could have called the Kehoe’s psychiatrist and, with permission from the Kehoes, had a consultation. She could have spoken to friends or neighbors of the Kehoes. She could have spoken to the people Ms. Kehoe worked with (Mrs. Kehoe worked at the same company for 21 years). She could have asked the courts to appoint an independent counselor to evaluate the case and make recommendations.  When Ms. Baker appeared on the Dr. Phil show, Dr. Phil offered to provide free evaluation of the couple by an independent psychologist, but Ms. Baker refused.  When Dr. Phil asked what she would do if the Kehoes went ahead with the evaluation and received a clearance from several independent counselors, Ms. Baker stated that it was too late, her family had bonded with the babies and it was not good for the children to bounce between homes.  Dr. Phil stated that the babies were now 6 months old and within the time period when they would have no long term consequences of changing homes. Ms. Baker declined to seek an independent opinion about the effects on returning the children to the Kehoes. At every turn from the moment she decided to become a surrogate mother, Ms. Baker refused to turn to professionals.  She is adamant in what she believes in and stands by the decisions she has made and cannot even contemplate that she may be making the wrong decision.  Finally when Ms. Baker feels she is losing an argument she turns to the safety of religion.  There was no winning for the Kehoes. They handed control to Ms. Baker from the outset and to this day Ms. Baker remains in control over the lives of these children.

Note from the author:  These cases are not over.  I understand that the parties involved believe that they are over because the law has decided that the surrogate mother in both cases gets to keep the child/children.  These cases are not over because these children will grow up and will have opinions of their own about who they call family and whether they want contact with the Intended Parents.  Tom and Gwyn Lamitina have a son who is biologically related to Emma Grace as they both have the same father.  Do these children have a right to know that they have biological siblings?  Amy and Scot Kehoe have remaining frozen embryos that they state they intend to use.  If a baby results from the frozen embryos then these children will all be 100% biologically related.   These cases are not over, they are just beginning for these children.  For the sake of these children it is so important that all these parents seek psychological counseling and guidance regarding future contact and conduct.

Surrogacy and India

Surrogacy and India

International or cross-border surrogacy raises serious questions of law relating to citizenship, nationality, motherhood, parentage and the rights of a child to be raised by their parents.  It is for these reasons that is it important for intended parents to carefully assess the legal risks involved in surrogacy in the country the birth will occur and the country the child will be raised in.  (http://blog.indiansurrogacylaw.com)

Baby Manja’s Japanese citizenship took over six months to resolve following his birth in India.  A German couple has been fighting their legal system for almost two years to get citizenship for their test-tube baby born through surrogacy in India and their case remains unresolved.    An Israeli homosexual couple has been denied the rights to obtain an Israeli passport for their two-month-old child born in India.  These are but a few of the problems caused by surrogacy in India.  (http://timesofindia.indiatimes.com/city/mumbai/5-yrs-in-making-holes-in-draft-law/articleshow/5915005.cms)

Is surrogacy in India safe?

This is a complicated question and the answer is yes and no.  The reality is that surrogacy in India is approximately 5 years old.  Reproductive tourism is a new field to India and the laws are immature and untested.  By contrast the laws of surrogacy are 30 years old in California.  The courts in California have dealt with thousands of surrogacy cases and the laws are known, tested and upheld by the Supreme Court of California.  India’s largest surrogacy clinic has participated in 167 surrogacy cases from 2003 to 2010 whereas just one of the largest surrogacy agencies in CA has participated in over 1500 births.

In 2002 India passes laws making surrogacy legal in that country.   In India the law states that a surrogate mother’s name is not to appear on the birth certificate and that she has no right to keep the child.  Rudy Rupak, co-founder and president of Planet Hospital, a medical tourism agency with headquarters in California, said he expected to send at least 100 couples to India this year for surrogacy, up from 25 in 2007, the first year he offered the service.  Lower prices in India make surrogacy affordable by middle class Americans.  Under guidelines issued by the Indian Council of Medical Research, surrogate mothers sign away their rights to any children. A surrogate’s name is not even on the birth certificate.  (http://www.futurepundit.com/archives/005073.html)

However in the Jan Balaz case the birth certificate carries the name of the Indian surrogate mother and Mr. Jan Balaz, the German National.  The Supreme Court of India will soon decide if Mr. Balaz must undergo an adoption of his child from the surrogate mother thereby confirming that the surrogate mother is the legal mother of the child she carries.  This is of course not in accordance with the agreement the couple entered into with their surrogate mother and the agency.  The decision of the Supreme Court of India shall have an impact on all the ongoing cases of surrogacy in the country.   It is highly recommended that intended parents wait for a decision from the Supreme Court of India before entering into any surrogacy arrangement.  There are strict rules governing international adoption and these rules will most likely be breached if a surrogate mother receives compensation for her services.  The laws in India are immature, untested and unpredictable.  Over the next decade, with more experience in this field, India may find a solution to how to regulate surrogacy.  There is no certainty regarding the laws of surrogacy in India.

What are the pros and cons of surrogacy in India?

1.  “It’s not for nothing that countries like India are called the Third World. When you arrive there it’s like you’ve just stepped onto another planet.” (http://www.roadjunky.com/article/635/third-world-india).  The reality is that India is a country of sharp contrast between rich and poor.  For some India would be classed as a developing country.  The gap in India between rich and poor is far greater than in most Western nations, with little being done to try and close this gap. Indian society is extremely unequal, with little being done to ease the lot of the nation’s poverty-stricken majority, and international relief agencies being required to operate in rural parts of the country. Standards of public health are low, and the human rights record is very poor, with much police brutality and abuse against low-caste Indians, and legal rights for them negligible.  Until these changes, India will be classed as a developing country. (http://wiki.answers.com/Q/India_is_a_third_world_country)

2.  SART figures for clinics in the U.S. show that fresh cycles in 2007 had the following results:

• 48% of cycles resulted in live births for women less than 35 years old
• 41% of cycles resulted in live births for women 35 to 37 years old
• 23% of cycles resulted in live births for women 38 to 40 years old
• 19%  of cycles resulted in live births for women greater than 40 years old

Of these cycles, 30% had twins, and almost 3% had triplets or more.  (https://www.sartcorsonline.com/rptCSR_PublicMultYear.aspx?ClinicPKID=0)  Clinics in India have not published their success rates.  There are estimated to be over 1000 IVF clinics in India, but no laws govern assisted reproductive technology (ART) and no watchdog has been authorized to police it. 

There are more than 1000 IVF clinics in India, but no laws govern assisted reproductive technology (ART), which includes surrogacy, and no watchdog has been authorized to police it.

“Most of the ART clinics in this country are not following these guidelines because they do not have any legal strength,” said R. S. Sharma, the deputy director-general in the division of reproductive health and nutrition at the Indian Council of Medical Research.

A Canadian couple discovered their twins were not biologically related to them when DNA testing was done upon their birth in India and these twins may spend the rest of their lives in an orphanage because the clinic’s records are unable to identify their biological parents.

3.  At face value, surrogacy in India appears to be a win-win situation.  The intended parents receive a longed for child while the poverty stricken surrogate earns ten times an average person’s yearly salary.  However on reflection it can be argued that surrogacy in India is no more than the exploitation of the world’s poorest women and that intended parents pay a price that is a fraction of the price they would pay closer to home for surrogacy.  Surrogacy in America has had 30 years to develop and settle on the guidelines that govern the field.  Typical to most USA surrogacy programs and upheld by reputable IVF clinics is the following guidelines:

a.                          Surrogate must be between the ages of 21 and 42 years old.

b.                          Surrogate must have delivered at least one child herself (reputable agencies will also require that she has raised a child or is presently raising the child)

c.                          Surrogate cannot be receiving any welfare payments

d.                          Surrogate is entitled to independent legal counsel

e.                          Surrogate undergoes psychological screening (reputable agencies will screen the surrogate and her husband).

The 50 pregnant women at the clinic are mainly of lower caste and from impoverished nearby villages. The pay they can hope to receive following a birth is equivalent to over 10 years’ salary for rural Indians.

 (http://www.timesonline.co.uk/tol/news/world/asia/article7113463.ece) It appears that the majority of surrogates recruited in India would be ineligable to participate in surrogacy in the US.

4. In the USA it is unusual for a surrogate’s husband to approach a surrogacy agency and such solicitation would raise red flags for a counselor evaluating the case.  In India many husbands actively work to convince their wives to participate in surrogacy because of the financial benefits to the family.

They don’t want to appear ungrateful, but some surrogate mothers admit that they would not take the risk if they had a choice. “My husband took almost two months to convince me to do it,” says Anandi, a 39-year-old about to give birth for an American couple. “He said, ‘Do it for your children.’ But I have very young children and I was worried about leaving them.

“I will feel sad when I give away the child. I don’t know if I will be allowed to have contact with it. My children want me to give the baby away; they don’t want it at home. Nobody else knows about this. The village people would say bad things. I’ve just said that I’ve gone away for work, and I haven’t even told many of my relatives, only a few. They wouldn’t understand.”

Anandi had just moved from one of two “confinement” homes, where surrogate mothers live for the duration of their pregnancies. They may leave the gated premises only for hospital check-ups, and their husbands and children are allowed to visit on Sundays.  

If the first surrogacy is successful, Sumita would consider another. But 10 minutes later, it is time for Janisha to leave. In dread of another separation, she wails and grips Sumita’s bedcovers, before tearing away and running round in heartbreaking distress. Her anguish shatters any illusion that to be a surrogate mother is simply a way to make easy money.       

 ( http://www.timesonline.co.uk/tol/news/world/asia/article7113463.ece)

5.  It should always be remembered that surrogate mothers are first and foremost mothers to their own children.  Surrogate mothers in India must leave home for the duration of the pregnancy and live in a hostel run by the surrogacy agency.  The reasons given by Indian run surrogacy agencies are: 

a)      Poor obstetrician/pregnancy care in the village the surrogate lives in

b)      Poor living conditions

c)      Agency is unsure if the surrogate mother will have access to fresh fruit and vegetables during the pregnancy

d)      Agency not comfortable with the living conditions of the pregnant surrogate mother

e)      Problems with other village residents with regards to disapproving of a surrogacy pregnancy

f)       Inability to remain in contact with the surrogate during the pregnancy due to no or poor means of communication.

g)      Uncertainty of being notified when the birth occurs or if a birth is imminent.

h)      No place for the Intended Parents to stay for the birth and after the birth

i)       No neonatal intensive care facility close by for the baby after the birth

However, all these reasons concern the newborn baby and the Intended Parents. There is no good reason for the surrogate mother to have to abandon her family and move far away from her family for almost 9 months.  This relationship is clearly inequitable.  There appears to be no balance between a surrogate mother as a mother and a surrogate mother helping another couple.  Why not allow the surrogate mother to see her children every day or whenever they can make the journey to see her?  Why not allow the surrogate mother to have her children live with her?  Why does the agency simply advertise in neighborhoods that are safe and middle class so the surrogate can live at home?  The answer to the latter question may well be that to pursue surrogate mothers who from middle class families would result in surrogacy arrangements being of comparable costs as surrogacy costs in the United States. 

This will often involve these women cutting themselves off from their families, including their own children, for the period they are gestating the child. They will take on the risks of childbirth for a child they will never know. If the pregnancy does not go to full term, or the child does not live, they are unlikely to be paid. Some will inevitably suffer psychologically from giving birth to a child from whom they will be immediately parted. The whole process is likely to be very alien to their culture.

It is arguable that their human dignity and right to bodily integrity is infringed, and the rights of their own children to the society of their mother may be compromised.  http://www.irishtimes.com/newspaper/ireland/2010/0419/1224268626911.html

6.  The rapidly growing but unregulated field of surrogacy in India has led to calls for India to introduce tight laws on surrogacy to protect both the Intended parents and the surrogate mother.  New legislation has been drafted, detailing the obligations and rights of all parties, but it has yet to be enacted.  According to Priya Hingorani, a prominent Delhi lawyer and member of an expert panel drafting the bill, tight regulations must be enforced to offer the surrogate mother a comprehensive package of remuneration and medical and psychological care. “When I look at the poverty, and the genuine need of the couple who don’t have children, I think that surrogacy is all right,” she says. “But when I see the other side of things, when people are exploited, then there is the need for very strong regulation. Surrogacy has become more of a commercial racket as it becomes more prevalent. We are seeing a new trend of fertility and wombs on sale.”  The legal status of surrogacy is unsettled at this time in India.

A bill to govern assisted reproductive technology and surrogacy has been drafted that makes it much harder, and maybe impossible, for international couples to hire Indian surrogates.  Under the proposed law, a foreign couple wanting to enter an agreement with an Indian surrogate would need a written guarantee of citizenship for the child from their government.  There is also concern that the proposed Indian legislation would also prohibit gay couples from hiring surrogates.

7.   For prospective parent participating in surrogacy in India the entire process is also fraught with difficulties. Thousands of miles from home, the language barriers, culture shock and basic standards of a Third World clinic, where two women are often in the operating theatre at the same time, can make for a frightening experience.  Couples pursuing surrogacy in the USA are often concerned about the medical qualification of the obstetrician taking care of their pregnant surrogate mother and their unborn child.  They frequently ask questions about which perinatologist they should go to for the nuchal fold test, the cvs testing or the amniocentsis.  Couples request second opinions, want to know about the hospital their baby will be born at, what doctor will their baby see between birth and their return home.  What options are there in India? 

8.  For some countries such as the USA, a couple can complete their paperwork within 10 days of birth and return home with their newborn baby.  However for other countries the stay is indeterminable.  Many British couple need to spend 2-3 months in India before returning home. 

9.  Finalization of parental rights for most countries involves proving a genetic link between the baby and the parent.  For couples where only one parent is biologically related to the child there is an additional risk of doing surrogachy in India.  If a parent dies before the birth of their child, there will be no way of proving the child is genetically related to the parent and therefore impossible to obtain citizenship for that child.  These children must remain in India and potentially live their lives in an orphanage.

Wills, Trusts and Embryos

By Molly O’Brien:

Molly is a 3rd year law student at Whittier Law School and wrote this paper for her class in wills and trusts.  We thought this information may be useful and interesting to our couples. 

 

GOAL: To determine whether your client has stored genetic material and whether they want any children conceived from this material, how they want the material disposed of, and whether any children conceived from the stored material should inherit. 

SCIENTIFIC BACKGROUND:

Gametes – The individual components from a man and a woman that make an embryo.  The egg, or oocyte, is the female component and the sperm, or spermatozoon is the male component.  These are mature reproductive cells, and when combined develop into a new individual.[1]

Embryos – An embryo is the developing human organism from about 14 days post fertilization (the combining of the gametes) until the period when the organs and organ system begins to develop which is approximately at the end of the second month of gestation.[2]

In-Vitro Fertilization – (IVF) means “in glass fertilization”. It is a procedure by which the gametes of the intended parents are joined outside of the body to create an embryo, which is then implanted into the intended mother for a higher chance of successful pregnancy.[3] 

Gamete Storage Facility – Using cryopreservation, embryos, or individual gametes, can be stored.  The embryos are stored in liquid nitrogen inside “straws” that are placed inside tanks.[4]

            Many people who create frozen embryos for assisted reproduction have remaining frozen embryos.[5]  Couples have options of what to do with those embryos;

1. Donate the embryos either to another infertile couple or to research.

2. Humanely discard; either defrost the embryos or implant the embryos into the intended mother at an infertile time.

3. Don’t do anything.[6]

Summary Of The Problem That Could Arise

            If you have a client who has undergone IVF there is a strong likelihood that they will have frozen embryos remaining.  During your client intake you should inquire if they have undergone any procedure, if they have any embryos in storage or gametes in storage.  If your client has any of these, then it is important to account for those embryos in the will or trust.  The cost of storage of the embryos may be a debt that needs to be anticipated or the disposition of the embryos after the death of one or both of the progenitors will need to be arranged.

I. How to write frozen embryos into your client’s will or trust.

            First, it is important to point out that your client may have already signed a form with their IVF doctor regarding the disposition of their remaining frozen embryos.  If they have signed a form with the doctor’s office, ask what year they signed it.  As of January 2004, California enacted a new code that states that a doctor providing a patient with fertility treatment must supply their patients with “timely, relevant, and appropriate information” to allow patients to make their own informed decisions regarding what to do with their remaining frozen embryos.[7]  Therefore, your client may already have a plan in place with the doctor’s office.  What they state in the will or trust and what they have told the doctors office should be the same instructions.

            Some doctor’s offices will also have patients sign release forms that state that if the patient does not pay the storage fees or otherwise abandons the embryos then the doctor’s office can destroy the embryos.  However, many doctors do not actually destroy the embryos because of both the moral dilemma and the fear that the patient may come back and try to reclaim their embryos.[8]  Therefore, your client and or their estate may be responsible for the unpaid storage fees and the embryos may still be around and need to be dealt with since they would be considered property of the estate.

 Suggested Language

 “Children: All references to ‘my children’ in this trust shall refer only to any child born to or adopted by my husband and I after the date of this trust agreement. 

‘Any child born’ to my husband and I shall include posthumously conceived children by me by means of assisted reproduction whereby I provided the egg and my husband provided the sperm as long as

(1) such child is born during my husband’s lifetime

(2) my husband has acted as such child’s legal guardian unless he was unable to do so as a result of his death or disability.

On the written declaration of any descendant of me and my husband and subject to any restrictions contained in such written declaration, a posthumously conceived child by means of assisted reproduction whereby such descendant provided either the sperm or the egg shall be considered a child of such descendant and a descendant of the descendant’s ancestors.”[9]

            This example is written as though the Settlor was the wife.  However, using interchangeable words such as “spouse” can make this work for a husband, as well.  Also, changing the word “trust” to “will” would make this operational in a will. 

            As a side note, a husband can also have the means of using remaining frozen embryos when the wife has passed away, even though he lacks a uterus.  The husband could use a surrogate mother to carry the child.  If the wife is your client and does not want the embryos to be used, the will or trust documents should explicitly state that the embryos should not be gestated.  If this is the case, have your client dictate the manner in which they wish to dispose of the embryos.

Is An Embryo A Person Or Property?

            A moral dilemma exists in defining the legal status of the embryo, as well.  Is the embryo a person, or is the embryo property?  The several states are split on this, and the Supreme Court has not decided a case regading the legal status of an embryo.

            In 1992, the lower court in Davis v. Davis[10] stated that life begins at conception and that embryos are people, not property.[11]  In that case, Mr. and Mrs. Davis were a divorced couple and the wife wanted to use their frozen embryos to achieve a pregnancy after their divorce.  The Court of Appeal reversed the Supreme Court’s decision and while they did not state that the embryos were property per se, the Court of Appeal held that both Mr. and Mrs. Davis had an interest in the embryos.[12]  Then the Supreme Court reversed the Court of Appeal decision ruling that the embryo has a status of something in between property and life.

            Conversely, York v. Jones[13] held that an embryo is more like property than a person.[14]  In that case, the York’s had frozen embryos in New Jersey and wished to transport the embryos to California.[15]  The clinic in New Jersey refused.[16]  The York’s had signed paperwork with that clinic where the paperwork referred to the embryos specifically as the property of the York’s.[17]  The court found the relationship between the York’s and the clinic to be that of a bailor/bailee and granted the York’s immediate possession of their “property”[18].

            With regards to embryo adoption[19], most states view the embryos to be adopted as a property interest that is going to be transferred.[20]  If embryos were to be legally viewed as property, then the controlling law would be that of progenitor’s rights and contract law.[21]  Scientifically speaking, an embryo does not have a differentiated nervous system and is not sustainable life on it’s own.[22]  Furthermore, in 2002, the FDA officially defined a human embryo as biological tissue.[23]

            There is a trend toward seeing the embryo as tissue with the potential for human life, which is essentially what the court held in Davis.[24]  The court went on to further state that when resolving disputes involving the disposition of embryos the court should first look to the preference of the progenitors.[25]  If there is a dispute between the progenitors, as there was in Davis, and there is a release form or other written documentation, the presumptive standard is to follow that prior agreement.[26]  If there is no prior agreement, the interests of the parties should be weighed.[27] 

II. What happens if you have frozen embryos, but you do not include them in your estate plans.

            If your client has frozen embryos and they do not dispose of them in their estate, the alternate is that the clients family – aka the brothers and sisters, aunts and uncles, etc of these embryos – will have to decide what to do with their would be siblings, nieces, nephews, or grandchildren.  This is an extremely unfair result so encouraging your client to state their wishes is prudent.  If there were embryos not accounted for, the embryos would simply pass through intestate succession.

            Also, there are storage fees that need to be paid.  The storage facility could be considered a creditor to the estate so providing monies for continued storage in the estate can be helpful.  

PREVENTION

Simply adding a question to your client intake form can help eliminate this possibility.

“Do you or your spouse have any frozen gametes or frozen embryos in storage”

If yes, then inquire about their plans and ideas for disposition. 

III. Can a surviving spouse use embryos after the death of the other spouse?

            When a child is born after the death of one or both of the progenitors, the child is deemed to be a posthumous child.  Whether a posthumous child can take under a will is a matter that varies form state to state.

Statutory Framework

            The Restatement of Property states that a child who is conceived and born AFTER the death cannot be considered an heir.[28]  However, if the child is born of genetic material by assisted reproduction, there is a trend toward allowing the child to be an heir as long as the child is born within a reasonable time after the decedents death and the decedent would have wanted the child to inherit.[29] 

            The Uniform Parentage Act (UPA) states that a parent child relationship exists if the natural mother and natural father were married to one another and the child is born within 300 days of the death of one or both of the natural parents.[30] However, the UPA also states that if a husband dies prior to frozen sperm being used for conception, the deceased father would not be the parent of any child conceived unless there was written documentation stating his intent prior to his death.[31]  Therefore, if you have a client who is living in a state that has adopted these provisions of the UPA then have them clearly state their intent in writing once they freeze their semen or their embryos.

            As of 2006, seven states that have adopted the UPA have allowed a posthumously conceived child to inherit if there was consent in the record.[32]  These states are Colorado, Delaware, North Dakota, Texas, Utah, Washington and Wyoming.

            The Uniform Probate Code originally stated that a child that was conceived prior to death, but delivered after death that child will inherit as though they had been born in the lifetime of the decedent.[33]  However, as part of the 1990 revision to the UPC, section 2-108 now states that a child “in gestation at a particular time is treated as living at that time if the [child] lives 120 hours or more after birth”.[34]

State Law

            Some states, such as Massachusetts and New Jersey, have recognized the rights of posthumously conceived children to inherit.[35]  On the other hand, other states, such as Florida and California, do not always recognize this right.[36]  However, it is important to note that in the California case that did not allow the inheritance, the natural parents were not married.  Furthermore, CPC §6407 states that a child conceived of the decedent prior to the decedents death can inherit.[37]  However, CPC § 249.5 states that a child conceived after the death of decedent shall be deemed to have been born during the decedent’s lifetime and after the execution of all of the decedents testamentary instruments (meaning they can inherit) if there is clear and convincing evidence that certain conditions are satisfied.[38]  These conditions are the specification in the will must be attested by at least one competent witness, the specification may only be revoked or amended by a signed writing and witnessed, and the person who can use the genetic material must be the spouse or domestic partner of decedent or some other person named in the specification.[39]  Moreover, there are additional sections of the CPC that if the decedent does not provide for an omitted child born or adopted after the execution of the decedents testamentary instruments, the omitted child will receive a share equal to that which they would have received had there not been a testamentary instrument.[40]  In other words, the omitted child would take the intestate share.

            In 2004, California Assembly member Tom Harman launched A.B. 1910, which granted inheritance rights to any child conceived within two years of the death of a parent.[41] 

            Ultimately, the best solution is to make it clear what the intent of the testator is.  Are they comfortable with the possibility of having a posthumous child?  Consult the most recent laws from the state you are working in. 

            As a side note, with same sex parenting as a lawyer you may run into problems because the parents may not be married.  For example, some states allow two dads to be on a birth certificate, but that does not automatically mean that the child will have inheritance rights.  Again, consult the local laws and write it clearly into the will.

IV. Postmortem Reproduction

            Another dilemma for your client may arise if they die and their surviving spouse wishes to extract their gametes for the purpose of postmortem reproduction.  The first notable case involving postmortem reproduction was an English case[42], where a young wife’s husband developed meningitis in 1995 and suddenly died.[43]  The wife, Diane Blood, had her husband sperm extracted immediately before death, and then again immediately after.[44]  The extraction of the sperm was not where Mrs. Blood ran into legal problems, her problems arose when she tried to use the semen.[45]  The court in England ruled that she was able to use the semen for an insemination, but she could not do so in the country.[46]  Mrs. Blood was inseminated in Belgium and has two children as a result.[47]

            The first case in America where a woman became pregnant after using the sperm of her deceased husband was Vernoff v. Astrue.[48]  Gaby Vernoff had her husband’s semen extracted 30 hours after he passed and the semen remained in frozen storage for 15 months.  Mrs. Vernoff then conceived after doing an artificial insemination procedure using ICSI[49] and a daughter was born.[50]  After birth, Mrs. Vernoff filed a lawsuit to have her daughter be eligible for “survivor benefits” because state law presumed that she was not her genetic father’s child due to being conceived postmortem. 

V. Conclusion

            In conclusion, it is best to ask your client thorough questions and specifically provide for all scenarios in their testamentary instruments.  Even if you couple thinks they do not have remaining genetic material, they may and they should double check with all medical facilities in order to avoid having their family inherit that genetic material. 

BIBLIOGRAPHY

CASE LAW

Davis v. Davis, 842 S.W. 2d 588 (Tenn. 1992).

Hecht v. Superior Court, 16 Cal.Rptr 2d 275 (2d Dist. 1993). 

In Re Estate of Kolacy, 753 A.2d 1257 (N.J. Super. 2000). 

Regina v. Human Fertilisation and Embryology Authority Fam. 151 (ct. of appeal 1999).

Stephen v. Commissioner of Social Security, 386 F.Supp 2d 1257 (M.D. Fla. 2005).

Woodward v. Commissioner of Social Security, 760 N.E. 2d 257 (Mass. 2002).  

York v. Jones, 717 F.Supp 421 (4^th Cir. 1989). 

STATUTORY LAW

UPA § 204 (2002).

UPA § 707 (2002).

CPC §6407 (2009).

CPC §249.5 (2009).

CPC §21620 (2009).

UPC §2-108 (1969).

UPC §2-108 (1990).

CA Health and Safety Code §125315 (West 2004).

A.B. 1910 (2004).

LAW REVIEW ARTICLES

Jessica Berg, Owning Persons: The Application of Property Theory to Embryos and Fetuses 40 Wake Forest L. Rev. 159 (2005).

Kate Lyon, Student Author, Babies on Ice: the Legal Status of Frozen Embryos Involved in Custody Disputes During Divorce.

SECONDARY SOURCES

17 A.L.R. 6^th 593 (2006).

BOOKS

Judith F. Daar, Reproductive Technologies and the Law (Lexis 2006).

 

Liza Mundy, Everything Conceivable: How Assisted Reproduction is Changing Our World (Anchor Books 2008). 

INTERNET RESOURCES

Jerry Cooper, Trust Administrators Tool-Up for Custody and Care of Client’s Genetic Property, The Trust Advisor Blog, (Oct. 9, 2009) (Last Accessed April 25, 2010).

http://www.cryobank.com/Services/Private-Storage-Options/Embryo-Storage/

 

Karen Synesiou, An Open Discussion – The Dilemma of Remaining Frozen Embryos, http://www.creatingfamilies.com/IP/IP_Info.aspx?Type=174

 

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[1] Judith F. Daar, Reproductive Technologies and the Law, 8 (Lexis 2006).

[2] Id. at 7.

[3] Id. at 35.

[4] See http://www.cryobank.com/Services/Private-Storage-Options/Embryo-Storage/ (Last accessed April 25, 2010).

[5] Kate Lyon, Student Author, Babies on Ice: the Legal Status of Frozen Embryos Involved in Custody Disputes During Divorce, 21 Whittier L. Rev. 695, 700 (2000).

[6] Karen Synesiou, An Open Discussion – The Dilemma of Remaining Frozen Embryos, http://www.creatingfamilies.com/IP/IP_Info.aspx?Type=174 (Las Accessed April 25, 2010).

[7] CA Health and Safety Code §125315 (West 2004).

[8] Liza Mundy, Everything Conceivable: How Assisted Reproduction is Changing Our World, 304 (Anchor Books 2008).

[9] Jerry Cooper, Trust Administrators Tool-Up for Custody and Care of Client’s Genetic Property, The Trust Advisor Blog, (Oct. 9, 2009) (Last Accessed April 25, 2010).

[10] 842 S.W. 2d 588 (Tenn. 1992).

[11] Id.

[12] Id.

[13] 717 F.Supp 421 (4^th Cir. 1989).

[14] Lyon at 706. 

[15] York at 423.

[16] Id. at 424.

[17] Id.

[18] Id.

[19] Embryo adoption is when a couple who has remaining embryos “adopts” the embryos out to another infertile couple for that new couple’s use.  This is similar to the embryo donation mentioned supra.

[20] Mundy at 298.

[21] Jessica Berg, Owning Persons: The Application of Property Theory to Embryos and Fetuses 40 Wake Forest L. Rev. 159 (2005). 

[22] Lyon at 721. 

[23] Mundy at 298.

[24] Davis at 597. 

[25] Id.

[26] Id.

[27] Id.

[28] 17 A.L.R. 6^th 593 (2006).

[29] Id.

[30] UPA § 204 (2002).

[31] UPA § 707 (2002).

[32] Jerry Cooper, Trust Administrators Tool-Up for Custody and Care of Client’s Genetic Property, The Trust Advisor Blog, (Oct. 9, 2009) (Last Accessed April 25, 2010).

[33] UPC §2-108 (1969).

[34] UPC §2-108 (1990).

[35] Woodward v. Commissioner of Social Security, 760 N.E. 2d 257 (Mass. 2002); In Re Estate of Kolacy, 753 A.2d 1257 (N.J. Super. 2000).

[36] Stephen v. Commissioner of Social Security, 386 F.Supp 2d 1257 (M.D. Fla. 2005); Hecht v. Superior Court, 16 Cal.Rptr 2d 275 (2d Dist. 1993). 

[37] CPC §6407 (2009).

[38] CPC §249.5 (2009).

[39] Id.

[40] CPC §21620 (2009).

[41] A.B. 1910 (2004).

[42] Regina v. Human Fertilisation and Embryology Authority Fam. 151 (ct. of appeal 1999).

[43] Judith F. Daar, Reproductive Technologies and the Law, 562 (Lexis 2006).

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id.