The Perils of DIY Surrogacy
Each time I post on our Infertility in the News page about a celebity birth via surrogacy (think Nicole Kidman, Elton John, Neil Patrick Harris, Ricky Martin, and just this week Martha Stewart’s first grandchild born via surrogate to her daughter Alexis), the emails and calls come in. The publicity about this option is making people consider it more often. One of the first questions asked is usually about how much surrogacy will cost. Most folks are flabbergasted when they hear that it can cost upwards of $100,000 to have a baby through a surrogate. The average range is $80,000 to $120,000 depending on factors such as use of donor egg, how many IVF cycles are necessary, and if the intended parents have to buy medical insurance for the surrogate. People often wonder if there are ways to save money. Well, yes, but…..
In my former life, before I forsook all desire for an income that could come close to supporting my family–er um, I mean before I became a nonprofit director, I was an attorney. I still receive the American Bar Association Journal every month. In this month’s Journal one of the featured articles was titled “…and Baby Makes Litigation: As Surrogacy Becomes More Popular, Legal Problems Proliferate” about the perils of one way to save money on surrogacy—the Do It Yourself approach.
The article highlights the case of a gay Minnesota couple who tried to save money by finding a surrogate over the internet and using her eggs rather than donor eggs. Nine months later their daughter was born. One month later, the surrogate changed her mind and sued to regain custody of the child.
I want to be very clear that this is the exception, not the rule, with all forms of surrogacy, even with traditional surrogacy where the surrogate is inseminated with the intended father’s sperm. (The other form of surrogacy is known as gestational surrogacy where the embryo that is transferred into the surrogate’s uterus is created via in vitro fertilization using eggs from a separate donor.) Regardless how rare, surrogacy, especially traditional surrogacy, is rife with the possibility of emotional and legal problems. As such, this is one area in life where saving money should not be your first concern.
Surrogacy is largely unregulated, and what regulations that do exist differ significantly by state. It surprises some folks that the US, unlike many countries, has no national law concerning surrogacy or any form of assisted reproduction or infertility treatment. Each state has its own law, or lack thereof, on surrogacy. Some state prohibit it completely, some states make paid surrogacy a crime, some states allow surrogacy only where at least one intended parent is genetically related to the child, some states treat it similar to adoption and require a judge’s prior approval, and some states have very surrogacy-friendly laws. As disconcerting as these differences may appear, the worst is that the majority of states do not address surrogacy at all, leaving parents and surrogates in a legal limbo. Here is a list of state laws on surrogacy, but it is not always easy to interpret these laws, so consult with a reproductive law attorney. (See below for suggestions on how to find one.)
So what’s a wantabe parent to do if surrogacy is either their preferred option or only option for parenthood? Proceed carefully and don’t try this on your own.
Surrogacy agencies and attorneys may cost more than a Google search, but they can and should provide a map through this legal and emotional minefield. You should expect that a surrogacy agency or attorney will:
- Explain the legal requirements
- Provide psychological, medical, and criminal screening on the potential surrogate
- Provide counseling or support for surrogates before, during, and after the pregnancy
- Review medical insurance availability and coverage for the surrogate and the child
- Help you understand the risk of traditional vs. gestational surrogacy
- Make sure the surrogate (and her husband) fully understands the process and her legal rights.
- Handles all monetary transactions between the intended parents and the surrogate
- Holds all money in a licensed and bonded escrow account
I know of no licensing requirements for surrogacy agencies, so you’ll have to do your own research to find one that provides these services. We provide resources on How to Choose a Surrogacy Agency. With surrogacy attorneys, use the following resources:
- The American College of Assisted Reproduction and Adoption Lawyers (ACARAL) lists members
- The American Bar Association Section of Family Law has a Committee on Reproductive & Genetic Technologies. Attorneys specializing in reproductive law are not required to be a member of this committee, but membership is evidence that they are up on the latest developments in this area of law.
- American Society of Reproductive Medicine allows non-physicians as professional members, and they have a Legal Professional Group.
- Ask your Reproductive Endocrinologist for a recommendation.
Three years later, the litigation for the Minnesota couple continues, but they still have custody of their daughter, although the non-genetic father has not been able to adopt the child. No doubt they have spent many times more in legal fees for this litigation than they saved by taking the DIY approach.
Check out these resources:
- Creating a Family radio shows on surrogacy
- Top Ten Tips for Creating Your Family Through Surrogacy
- Tips on How to Choose a Surrogate
- Creating a Family video on Choices You’ll Face When Creating Your Family Through Surrogacy
P. S. There are other ways to try to save money of surrogacy, most notably going abroad. We will be doing a show on this topic in a few months so I’ll save my blogging on that topic till after that show.Image credit: Muus Creation
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