A “surrogate” or gestational surrogate is an older term for what we now refer to as a “gestational carrier”. A gestational carrier (GC) is a woman who accepts to bear (or be pregnant with) the child of another woman who is incapable of becoming pregnant using her own uterus. The gestational carrier provides a host uterus for the offspring, and does not contribute genetic material, i.e. the carrier is not the egg source. The offspring’s genetic material may come from the egg and the sperm provided solely by the aspiring couple (referred to as the “intended parents” or IP) or in combination with donor egg and/or donor sperm depending on the needs of the intended parents.
Patients who need gestational carriers include those who:
Choosing a gestational carrier is crucial first step in the process of conceiving with a carrier. This is, after all, the woman that will be an important part of the intended parents’ life for a year or more, and may even continue to be a part of the family beyond that, if so desired. The gestational carrier may be provided by an agency or could be a friend or a family member. If you select a GC from an agency, they will provide all necessary information and arrange the required contracts and agreements. If you plan to use a gestational carrier you personally select, an agent must be contracted to work with the gestational carrier and the intended parents. Please see the article in this issue discussing Gestational Carrier Agencies. In short, the agent acts as an intermediary and facilitates the acquisition/completion of the items below:
- do not have a uterus (including gay male couples and single men)
- have a very abnormal uterine cavity
- have had several recurrent miscarriages, not due to embryo issues
- have had recurrent failed IVF cycles and the embryos are not suspected to be the problem
- have medical issues for which pregnancy is not advised
Upon completion of all requirements listed above, the gestational carrier begins her screening appointments. The screening for the carrier includes medical records review, physical and ultrasound uterine assessment by a PFC physician. Appropriate blood tests for the gestational carrier and her spouse, if applicable, are also performed. Should the physician find any problem or should any of the laboratory tests be abnormal, it is possible the cycle may be delayed or the GC may not be medically approved to proceed.
- A psychological evaluation of the gestational carrier (and spouse) by a licensed professional including counseling for the prospective GC and her partner as well as psychological testing
- Medical insurance for the gestational carrier, to cover all aspects of pregnancy
- A legal contract drawn up by an attorney, with separate legal representation for both the intended parents and the gestational carrier
- Any necessary coordination for the duration of the pregnancy
Pacific Fertility Center follows some basic guidelines for selection and approval of prospective gestational carriers. Currently, the American Society for Reproductive Medicine, a national medical society to which we belong, is working on the establishment of standard guidelines for physicians and IVF clinics working with patients that need gestational carriers. First and foremost, there must be a legitimate medical reason that a man, woman or couple needs to use a gestational carrier. That is, just not wanting to be pregnant is not a sufficient reason for another woman to assume the risks of pregnancy. If the prospective GC is a friend or family member, there must not be any dependent relationship or evidence of any coercion. These are some of the basic requirements for gestational carriers:
Some other recommendations:
- Age: 21- 40. We do prefer GCs to be less than 40 prior to embryo transfer but will make exceptions up to age 45 for healthy candidates that have had successful delivery within the last 5 years.
- The current recommendation is that a gestational carrier’s maximum weight/BMI should be restricted to ≤ 32.
- Carriers must have had at least one full term birth and having living child/children at home is the norm.
- No more than 5 natural births/deliveries and no more than 3 C-section deliveries.
- The gestational carrier must have no significant chronic illness. Specific medications which may have the potential to interfere with fertility medications or which are not recommended for use in pregnancy (e.g. antidepressants) are not permitted.
- Potential carriers must not use tobacco, illicit drugs, and agree to not drink any alcohol during pregnancy. We recommend that carriers not consume caffeine during pregnancy. Carriers should agree to taking daily prenatal vitamins and if applicable, thyroid hormone supplementation during pregnancy.
- Last birth of the gestational carrier should be less than 5 years, but is contingent upon request. A gestational carrier can become matched as a carrier 6 months after her last delivery.
- All prior medical, prenatal and delivery records for each pregnancy are required for the initial screening process.
While undergoing IVF with a gestational carrier can seem a daunting endeavor, this can be a positive experience for everyone. Careful matching of intended parents to their gestational carrier and her family is essential to getting the process started off on the right foot. Exacting attention to detail by the agency and fertility clinic are critical to a successful establishment of the pregnancy. Flexible attitudes and compassionate behaviors are important characteristics and will help lead to a successful outcome for everyone.
- We recommend that the Intended Parents meet the GC at least once and attend as many medical visits as feasible. Visiting the GC’s home is also a good idea, if possible.
- Complete agreement between the IPs and GC is mandatory on several issues such as the number of embryos to transfer. We do, in general, recommend no more than 2 embryos but, with egg donor egg source, we recommend only one embryo be transferred. In general, the legal contracts will have language specifying these issues.
- It is important that the GC be in a stable home-life situation without recent or anticipated changes in marital status, evidence of financial distress or having legal disputes. A supportive home environment is best for the health of all involved parties.
— Carolyn Givens, M.D.
Carolyn Givens, M.D. was the first in San Francisco to
successfully initiate a pregnancy
using intracytoplasmic sperm injection
(ICSI). She currently co-directs the
Bay Area Pre-Implantation Genetic
Diagnosis Program (PGD) and is
director of PFC’s PGD program.
Mirna Navas is the Founder and Director of Reproductive Solutions. Reproductive Solutions is a liaison service for couples who desire assistance with egg donation and with gestational carrier services. Ms. Navas helped establish the first egg donor program in the United States. She is a member of the American Society for Reproductive Medicine, SART, Pacific Coast Reproductive Society, European Society of Human Reproductive and Embryology (ESHRE) as well as the Mental Health Group.
Building a family through surrogacy is a process that encompasses a year to two years of preparation and coordination before a baby is delivered. This entire process can sometimes be challenging for all those involved. Families who are starting out should know that it does not and should not have to be a challenge faced alone. Starting a family should be one of the greatest highlights in one’s life and one in which parents can cherish each step of the way. Working with a Gestational Carrier Agency is the key to creating a smooth journey for all parties throughout this process. The Agency is there to be a helping hand from the beginning of the gestational carrier selection process until the birth of the baby and beyond, answering every question and addressing every concern along the way.
One of the most important aspects of this process is finding the right candidate to be your gestational carrier - as of course, this woman will be carrying your child. Carrier selection is also where the expertise of an agency comes in to play. An agency will help you locate a potential gestational carrier, as well as pre-screen the potential carrier to make sure everything checks out. The agency facilitates an in-depth analysis of the surrogate including a medical review, mental health evaluation, legal issues, and also checks her background to ensure compatibility with both parties. An agency may uncover things other people might not know to look for. The Agency serves to foster and encourage a mutually respectful and friendly relationship between the intended parents and the gestational carrier and to keep this a smooth relationship throughout the pregnancy and birth.
After selection, the Gestational Carrier Agency is the main contact between the gestational carrier and the intended parents. They serve to facilitate all contracts, meetings, screening and medical appointments and insurance arrangements. Your agency can also help to address the psychological and emotional needs of both parties during this process. Conception and pregnancy with a gestational carrier can be a confusing time, so the agency is here to advise you on all aspects and guide you so that you don’t have to worry about overlooking any important details before beginning the process of becoming a parent. The Agency addresses and works through these issues in a professional manner, especially in areas where the carrier or other family member might feel uncomfortable. An experienced agency knows your needs beforehand and is there to sort everything out to make the journey as easy as possible.
Another important factor in using an Agency is that an Agency representative can physically be there with you while setting up your appointments and may be able to attend appointments and meetings with you whenever you would like. The Agency will help set up appointments with psychologists to evaluate the gestational carrier, as well as arranging meetings between the intended parents and the gestational carrier whereby an Agency representative can also be present if needed. The Agency is in fact the primary point of liaison between the gestational carrier, the intended parents, the fertility clinic, the attorneys for each party and the psychologists. Intended parents may need help in finding the right clinic (if they don’t already have a relationship with one) and the Agency provides referrals to attorneys and psychologists specialized in this field. The Agency arranges for necessary health and life insurance coverage for the gestational carrier for the pregnancy and delivery. The Agency may assist in setting up escrow accounts through a licensed attorney or an established escrow company, as required by California law, and the agency will oversee disbursement of trust account funds according to the Surrogacy agreement.
The Agency will make sure that everything before, during, and after the birth of the child goes smoothly and is worked out without any problems. If proximity makes it feasible, an Agency representative may attend the embryo transfer with the Gestational carrier. During pregnancy, an Agency representative is in constant contact with the gestational carrier regarding her medical appointments as well as her general well being, and, if necessary, will arrange for counseling for the gestational carrier throughout this process. The Agency representative may also attend the delivery of the baby if possible, and if desired by the intended parents. Upon the birth of the child, the representative can also make recommendations for medical insurance for the child/children if needed, especially for foreign intended parents, as well as many other things, such as how to obtain an expedited birth certificate and expedited passport.
As the Director of Reproductive Solutions, and with over 25 years of experience in the field, I make the gestational surrogacy process flow easily for everyone with my team of experienced individuals who all work together to provide the best experience for our clients. Each individual client is special and has different needs, and at Reproductive Solutions we create a confident, friendly environment to cater to all our clients’ needs. We continue to have many initial skeptical clients astounded by the results Reproductive Solutions is able to provide them. Some testimonials from past clients demonstrate the benefits of using a Gestational Carrier Agency like Reproductive Solutions.
“Mirna was a significant asset during the preparations for my transfer. I am an intended single father, working with an experienced surrogate outside of an agency. Mirna played several key roles in my situation: (1) Her knowledge of the process helped things move smoothly in during the preparation for transfer. She anticipated every next step and prepared both me and the surrogate. (2) Mirna kept things moving. She served as an advocate for me and for the surrogate and was the intermediary between me and the IVF clinic and the Egg Donor Agency. I know that things would have taken significantly longer without her. (3) Peace of mind. Having Mirna watch over every step, ensuring that things were done properly, with my interests in mind was a great relief throughout the process. I would highly recommend her services to any intended parent(s).”
Using a Gestational Carrier Agency like Reproductive Solutions is essential to any intended parents’ journey through the surrogacy process. It is very reassuring for intended parents to know that there is someone there to oversee the process and help make the right choices all along the way. Everyone using a surrogate should know that using a Gestational Carrier Agency is not only the right choice, but also the best choice they can make by having experts standing beside them the whole way through.
— Mirna Navas
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Deborah H. Wald is the founding partner of Wald & Thorndal, PC. Her primary practice areas include Parentage Litigation, Adoption and Assisted Reproduction Law. Ms. Wald additionally teaches “Topics in Contemporary Family Law” at the University of San Francisco law school. She is a member of the American Academy of Assisted Reproductive Technology Attorneys and is Chair of the National Family Law Advisory Council of the National Center for Lesbian Rights. She is a member of the Family Law Sections of the American Bar Association and the State Bar of California.
Q. What should be included in our surrogacy contract?
A. A surrogacy contract needs to address at least these issues:
(1) What is the surrogate being compensated for, and how much is she being compensated? Typically, a contractual surrogate is paid a “base fee” for her gestational services, and then is additionally compensated for things like any invasive procedures, carrying multiples (twins or triplets), travel expenses, lost wages, maternity clothing, legal fees, provision of breast milk, etc. The exact compensation terms should be spelled out in the contract to avoid any confusion or misunderstandings about fees.
(2) Who will hold escrow? Under California law, the surrogacy agency cannot hold the funds. Surrogacy funds must be held by either a licensed attorney (who will hold the funds in a state-registered legal trust account that is governed by State Bar rules) or a licensed, bonded escrow company. This is to protect both Intended Parents and Surrogate from the funds disappearing in the middle of the surrogacy process. Some attorneys for the Intended Parents will hold escrow, but many will not because they believe this is a conflict of interest. If there is a conflict between the Surrogate and the Intended Parents over payment of fees or expenses, the attorney for the Intended Parents needs to be available to advocate for the Intended Parents, and this is inherently inconsistent with the neutral role of a person holding the funds in a fiduciary capacity.
(3) What behaviors are expected of Intended Parents and Surrogate? A surrogacy contract generally will set out behavior expectations for Intended Parents and Surrogate including compliance with all medical directives, dietary and travel restrictions during pregnancy, agreements on communication about the pregnancy and attendance at prenatal visits, etc.
(4) How many embryos will be implanted and what is the plan re: selective reduction? The Intended Parents and the Surrogate need to be in agreement about multiple pregnancies. If the Intended Parents are clear that they will not selectively reduce a triplet pregnancy unless there is something wrong with one of the babies or continuing the pregnancy would be dangerous for the Surrogate, then they need to be matched with a Surrogate who is willing to carry triplets. On the other hand, a Surrogate who is unwilling to carry more than twins will be a perfect match for Intended Parents who are unwilling to have more than twins. The contract needs to clarify the plan regarding implantation and reduction, to set expectations and avoid a mismatch of Intended Parents and Surrogate.
(5) What is the plan for assuring that the Intended Parents end up the legal parents, and the Surrogate is not held legally responsible for the child? A surrogacy contract will always state clearly that the Intended Parents will be the legal parents and the Surrogate (and her husband, if she has one) will not; and the contract also should specifically set out the plan for assuring that parentage is established in a timely manner and pursuant to the laws of the relevant state(s). Since each state has its own laws and procedures for establishing parental rights, the exact manner for addressing this will vary depending on the states where the Surrogate and Intended Parents live.
Q. If we use a surrogate to carry our child, at what point are we recognized as legal parents?
A. There are two kinds of surrogacy - “traditional” surrogacy and “gestational” surrogacy. With traditional surrogacy, the woman carrying the child is also the genetic mother - as a general rule, she conceives through artificial insemination with the intended father’s sperm, but no donated egg is used. Like many other fertility centers, Pacific Fertility Center does not offer traditional surrogacy, but does offer gestational surrogacy services. With gestational surrogacy, the woman carrying the child is not genetically related to the child - an embryo is created in vitro, using either the intended mother’s eggs or the eggs of an egg donor, and then the embryo is implanted in the uterus of an unrelated carrier.
With gestational surrogacy, the law is clear that the intended parents are the legal parents of the child, and we generally can get a judgment to that effect prior to the child’s birth. I recommend waiting until the 2nd trimester - after the worst dangers of miscarriage are over - and then filing for parentage as quickly as possible and no later than the 28th week. Courts often take a month or more to process these actions, so it isn’t advisable to wait any later. But generally speaking, if the legal work is done correctly, most California courts are now granting pre-birth surrogacy judgments on the papers, with no actual court appearance required, making it a pretty stress-free process for Surrogate and Intended Parents.
It is important to note that even though many California courts are routinely issuing pre-birth judgments in surrogacy cases, these judgments do not technically go into effect until a baby is born, to avoid a legal conflict over medical decision-making prior to birth. Therefore, the Surrogate remains in full control over her prenatal care and medical choices prior to the moment of delivery, contingent on whatever the contract between Surrogate and Intended Parents specifies in this regard.
Q. Since different counties have different procedures for getting pre-birth orders, can I (or my lawyer) choose the county with the best procedures and file our pre-birth action there?
A. Although a few California counties have, historically, been willing to accept out-of-county surrogacy cases, this appears to be changing. California venue laws provide that a legal action addressing the parentage of a child can be brought in one of two counties: the county where the child resides, or the county where the child is found. Since pre-birth parentage orders are automatically stayed until the child is actually born, and since a living child resides with its parents, it has always been my position that the child resides wherever the Intended Parents reside - and no court has yet taken a contrary position. On the other hand, the child is found in the county in which the surrogate resides, so that also is an appropriate county to file in. So, generally speaking, California Intended Parents using a California Surrogate will have a choice of two counties, and your attorney can advise you as to which one is preferable.
Q. What happens if we use an out-of-state surrogate?
A. If your child is conceived in the state of California, California courts retain jurisdiction to determine parentage. (California courts have jurisdiction to determine the legal parentage of any child conceived in California, whether conceived through sex or through assisted reproduction.) Therefore, if you are using an out-of-state surrogate but want California law to apply, you need to make sure that your child is conceived here. That said, your child’s birth certificate will be issued by whatever state your child is born in, and some states take issue with California courts telling their departments of vital records what to put on a birth record. This can be particularly problematic for gay couples having children through surrogacy, as not all states will issue birth certificates reflecting that a child has two parents of the same sex. For these reasons, it always is a good idea to seek the advice of an attorney in the state where your child will be born, preferably prior to making a final decision to use a surrogate from another state.
— Deborah H. Wald
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After a year of marriage, we decided it was finally time to get pregnant. I did not think it was going to be a big deal. And, in the beginning, it wasn’t. In fact, we got pregnant the very first time we tried. And, the pregnancy went well. That is, until we received the very bad news that would change our lives forever. A rare complication had occurred due to the amniocentesis and our baby boy passed away. I was 24 weeks pregnant.
The happy family!
We took the time we needed to grieve our loss. And, after a year, even though our grief had not completely gone away we decided to try again. However, getting pregnant a second time was not so easy. My previous pregnancy had caused an auto-immune issue that was not only affecting my personal health, but also my ability to get pregnant. It was a very frustrating time for us and after trying on our own for over a year, we decided we needed help.
We researched all of the fertility agencies in the Bay Area and we decided that PFC would be the perfect choice for us. We were impressed by their knowledgeable staff and we felt confident that they would be able to help us. Our plan was to try IVF. However, I was concerned that my body would betray me once again. And, to be perfectly honest, I was terrified of being pregnant for a second time. And, if that was not enough, my personal doctors told me that not only was it highly likely that my auto-immune issues could get worse during another pregnancy, but also that my immune system would pass an antibody to my baby that could cause a heart defect. This information was just too much for one person to handle. So, after a few “heated” discussions with my husband and several hours of therapy sessions, we decided that surrogacy would be the best option for us. Now, if you would have told me 4 years ago that we would have a surrogate carry our baby, I would have thought that you were crazy. I am not the type of person to let a stranger drive my car, much less carry my baby for me. Just shows you how much things can change depending upon your circumstances. The fact of the matter was that I knew in my heart of hearts, a “stranger’s” body was more healthy than my own to carry our baby. Once we accepted this, the decision became an easy one for us.
We were fortunate enough to have the PFC staff support us in our decision. While I went through my first egg retrieval to make sure I had embryos for a surrogate, we also interviewed surrogacy agencies that PFC recommended to us. We decided to work with Creative Conception, Inc. and we are so glad we did! We met a wonderful surrogate and her husband that were a perfect match for us. She was a mom with three daughters and was dedicated to putting her life on hold to help us become parents.
We completed all of the personal and legal paperwork as well as all of the medical and psychological evaluations provided by PFC. After a few months, we were ready to start our first transfer from my frozen embryos. Unfortunately, we were unsuccessful with the embryo transfer. We were just devastated. My husband and I had suffered so much loss prior to this unsuccessful transfer that we were heartbroken with more bad news. But, we knew one thing for certain. We wanted to have our family so we tried again. This time, we decided that I would have a fresh retrieval. The embryo transfer was successful. Our surrogate was pregnant...with twins!
We attended all of our surrogate’s doctor’s visits. And, my surrogate and I kept in touch on a daily basis during the pregnancy through email, texting and occasional phone calls. I was pretty used to using email, but I had never been much for texting. When I quickly realized that the majority of our conversations were occurring by text, I decided that I had better learn how to text (and learn how to text quickly).While I was at it, I made sure to upgrade to an unlimited texting plan.
Now, I don’t want it to seem like our relationship was all sunshine & rainbows. Like any relationship, it had its ups & downs . However, this one was very different than any other relationship that either one of us had before. We had to learn how to effectively communicate with each other and most importantly, learn how to trust each other. We were both fortunate to have family members support us in our journey. However, for my husband and I, there were several times when we had to limit our conversations with family & friends. A few did not seem to completely understand what we were going through. And, even our strongest supporters occasionally said the stupidest thing to us. So, during this process, my husband & I did our best to surround ourselves with supportive people, take good care of ourselves and of one another. For myself, I found great support with therapy. Additionally, I was able to connect with other intended parents through our surrogacy agency. To this day, I am still friends with many of these amazing parents.
My surrogate took such great care of herself that she carried our babies all the way to 38 weeks. At this point in time, the doctor decided that we should induce. It was a very exciting time for all of us. And, on March 4th, 2011 she delivered our baby girl Alison. Five minutes later, our baby boy Jack arrived. We were finally parents!
Now, a year has passed and we have enjoyed every single sleepless moment of parenthood. We just celebrated our babies’ 1st birthday. And, I’m happy to say that my surrogate and her family attended our party, just like we have attended their kids’ birthday parties over this past year. I’m not sure if everyone stays in touch with their surrogate. It’s probably different for everyone. As for my surrogate, I cannot imagine my life without her. I am forever grateful for what she has done for us. And, this “stranger” is and will always be a very important part of our lives. She can drive my car anytime she wants!
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