The Perils of DIY Surrogacy

Dawn Davenport


The Perils of DIY Surrogacy

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. It is not always easy to interpret laws regarding surrogacy, 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:

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

15/03/2011 | by Dawn Davenport | Categories: Blog, Infertility, Infertility Blog | 12 Comments

12 Responses to The Perils of DIY Surrogacy

  1. Avatar Heidi Smith Luedtke says:

    It is so tempting to take an easier, less expensive approach when you desperately want a child. Matters of the heart are so hard to understand until you’re there, in the moment, feeling how you feel. Your recommendations are smart.

    • Avatar Dawn says:

      You are so right about the temptation. Desperation often erases common sense. I completely understand that too. That’s why it helps to have someone no so emotionally caught up in it all, give you advice.

  2. Avatar Mariah M says:

    I was once considering being a surrogate. I started reading all of these agency profiles online and it was actually slightly depressing for me. I wanted to do this for a friend who was having trouble getting pregnant, but she’s pregnant now and due in July (YAY!).

    I never stopped thinking about doing this though. So since she is pregnant I figured I would donate my eggs. The problem I had with what I read about was racial issues. Apparently African American eggs are not in vogue. Asian eggs are in demand as are Caucasion. People who went to Ivy league schools. Creative individuals. Blah blah blah. What’s the deal? I don’t see how someone so desperate could be so picky about these types of issues. Healthy eggs are healthy eggs. Why are peple on a fantasy quest for “creating” the “perfect” children?

    Sorry for venting here but I kinda wanted to hear from some people on the other side of the fence. I’m prepared to help someone who really wants help, but don’t insult me and tell me my beautiful eggs are icky. Thanks for listening ladies. Again, sorry for the vent session on your blog Dawn. I’m just someone interested in the topic and willing to help where I can. Your replies are appreciated. Thanks.

    (IComLeavWe #167)

  3. Avatar J.D. says:

    Thank you for this warning. As the mother of a child born through surrogacy, I want everyone to know that while it is a wonderful way to become a mom, it isn’t something to be entered lightly and without good support and advice. Thank you for your advocacy to bring surrogacy out of the closet!

  4. Avatar If By Yes says:

    Sometimes I wonder if I could be a surrogate. I liked pregnancy. I always come to the conclusion that I would do it for a beloved friend, but could never do it commercially… the gulf between the law and the heart is so wide.

  5. Avatar shorty says:

    thanks for leaving a comment!

    Here in Canada, financial compensation for donor egg/sperm or surrogacy is illegal. Many people looking for these options travel to the US or elsewhere, making it even MORE expensive and even more complicated.

    • Avatar Dawn says:

      Yes, the differing laws between countries and between states in the US makes it imperative that people use a surrogacy agency and/or attorney who is knowledgeable and who specializes in this area. You’re also right that it isn’t cheap!!!

  6. Avatar Lisa Marsh says:

    Dawn, thank you for pointing out that article on the perils of DIY surrogacy. I will definitely read that. As a former lawyer myself, I would always recommend that anyone entering into an area so fraught with potential conflice consult a legal advisor. There is at least one law firm in the UK that has a department of solicitors who specialize in fertility matters.

    Lisa (ICLW #112)
    P.S. I’m speaking about fertility support today at the Fertility Focus Telesummit, which is free. I would love you to listen in to my talk and the other 11 speakers this week, either live or to the recordings afterward. You can register through my blog: Please help spread the word to anyone who is infertile and trying to conceive, or make decisions about treatment.

    • Avatar Dawn says:

      I”m so glad you’re speaking at the Teleconference on support. We need this. And yes, there are a number of attorneys and law firms in the US that also focus on reproductive law exclusively. If anyone is reading this and wondering how to find an attorney to help you through the maze of egg donation, embryo donation, or surrogacy, check out the Creating a Family Infertility Service Provider page under legal services.

  7. Avatar P.H. says:

    What a nightmare for that couple. Lesson learned–go with a professional!!!

  8. Avatar Carol says:

    I had not idea it was so important to get a lawyer or use a surrogacy agency. I don’t know if that’s the method we’ll use to have our family. Probably will try one more round of IVF, but I’ll remember this if we do.

  9. Avatar Mia says:

    Wow, my partner and I could easily have been that couple in your blog. We’ve been talking surrogacy for the last year and it’s the money that’s the problem. We thought we’d go online and try to find a surrogate by ourselves. Now, I don’t know. How do regular people afford this? by the way, we loved your show on March 16 on issues facing gay dads. Just hope we can find a way to have these issues.

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