Egg Donation and Surrogacy

So, we finally get to read the Sunday Magazine article, and they do not credit Sanford Benardo or Northeast Assisted Fertility Group (NAFG) for our input. Oh, well. Nonetheless, I found Kuczynski’s story of infertility and surrogacy heartfelt and brazenly honest. It was also pretty accurate.

I first read the story as a text-only computer print-out; only this morning did I see the accompanying photos, which blatantly expose her provocative subtext: “I am rich, white, urban, and privileged; dare to judge me for paying lower status women to do what I cannot.” Anyone familiar with Kuczynski’s writing would expect this. Readers commenting on the New York Times site, for the most part, declared her a self-indulgent snob; a handful were sympathetic. This was a personal story, not a serious study of surrogacy. It would be unfortunate if the general public judged surrogacy solely through Kuczynski’s lens.  Journalistic surrogacy stories are typically sensationalistic; this one is no different in that regard.

A couple of quibbles: I think Kucsynski did “low ball” the figure for the total cost of the surrogacy: although her carrier did not require extra insurance, if you add up the agency fee, carrier fee, legal fees, and medical fees, the figure is closer to $100K than $70K. We find many agencies are not upfront with all the possible costs involved to prevent scaring off prospective clients. (The NAFG site includes a section on program fees which shows a complete itemized breakdown.) Also, we would not advise “skirting” any legal issues and having the embryo transfer take place in New York, where compensated surrogacy arrangements are illegal. It worked out fine in this case, but most New York doctors we know would not participate in a surrogacy in New York state. Embryo transfers would take place in neighboring New Jersey or Connecticut.

Whether you sympathize with Kuczynski or not, the pain of infertility is undeniable. It affects millions of people, no matter their race, income, education level, or class. As I have said before, a successful surrogacy is a rare joy to behold for everyone involved: not only the intended parents, but the carrier and her family, and even the professionals that helped make it happen.

We are eager to view Alex Kuczynski’s “Her Body, My Baby” when it is posted online and comes out on Sunday.

The New York Times contacted the Northeast Assisted Fertility Group regarding our opinions on surrogacy law and procedure, but we did not participate in Kuczynski’s surrogacy.  Preview the article on Jezebel.com.

(See our followup post to the Alex Kuczynski article.)

Apart from egg donor compensation (at a limit of $10,000 for her time and effort, according to the ASRM), our egg donors are entitled to reimbursement for other expenses incurred by the process. For local donors, these can include gas, tolls, parking, and lost wages for the retrieval day (which requires a full day off from work). For out out-of- town egg donors, expenses include travel, hotel, per diem cash (NAFG’s egg donation program offers $75 per day), lost wages, as well as travel, hotel and per diem expenses for a companion.  Although we appreciate the financial sacrifice that recipients make for fertility treatment, we discourage our clients from nickel and diming here: yes, your donor is getting paid for her efforts, but she is doing you a great service, and for that, she should be in a comfortable hotel, have money for food, and not be penalized for losing work. As an agency, we work hard to find reasonable rates for flights and hotels, but egg donor safety and comfort is our primary concern. An estimated expense budget is specified in the contract, so all agree on its amount and scope ahead of time.

According to our policy, the donor only receives her compensation if the retrieval takes place. If, for any reason, the egg donation cycle is not completed, the donor does not get paid. (Some agencies pay the fee in increments along various stages in the process, but we do not.) She cannot be held responsible for the recipients’ expenses for any of her travel or medical care (except in a hypothetical case of willful fraud on the donor’s part). We have never had a case so far of an egg donor backing out of a cycle once the medications have started (she is, after all, just days away from her retrieval: aside from a medical or other unforeseen disaster, why would she back out after she has come so far?), but we have encountered recipients eager to protect themselves from this unlikely occurrence.  To this end, a minority of assisted reproduction attorneys include severe penalty clauses in their contracts, claiming that if the donor backs out for “unreasonable” (but unspecified) reasons, she is responsible for paying for her expenses, plus any money spent on medical care and medications related to the egg donation cycle for both parties from the start (although we never had an attorney willing to specify exactly what this amount would be).  We at NAFG stand firmly against such penalty clauses in egg donor contracts, for many reasons.

To be continued in Beyond Compensation:  Egg Donor Expenses and Financial Liability (2 of 3).

This article is part three of a three-part series.  Click here for Part One and Part Two.

BEST reasons to consider surrogacy

I have a serious medical condition (premature ovarian failure, hysterectomy, a genetic issue) that prohibits me from conceiving and carrying a child; I am a single man or a gay man in a relationship and want a child.

In these cases, the need and the commitment, which often go hand in hand, are unequivocal. Our most successful surrogacies involve people who have yet to have any children of their own because of some physical disability. If the egg and/or uterus are not functioning properly or absent altogether, using someone else’s becomes the only way to go (aside from adoption, which is a great alternative but not right for everyone). Furthermore, these are the people who carriers are most eager to help.

Although some doctors will not perform surrogacies for gay male intended parents because they do not consider them legitimate medical cases, there are many who will. NAFG supports gay families and are always happy to help them.

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Read information about our surrogacy program, both for surrogate mothers and intended parents.

This article is part two of a three part series.  Click here to read Part One and Part Three.

“OK” reasons to consider surrogacy

“I am in the process of adopting internationally and surrogacy is my back-up plan in case it does not work out; Although I have children from a previous marriage I want more children with my new husband in order to bring us closer together; I have had endured many years of unsuccessful rounds of IVF and now I want to try with my own eggs and a surrogate.”

What is weak in these three scenarios is commitment to success. If you are working on an adoption at the same time, you are not fully committed, and risk abandoning the surrogate after a relationship has been established between you. The second two scenarios are risky because they typically involve women over forty who insist on using their own eggs, and will not consider donor eggs. The chances of a live birth resulting from an egg of a woman over forty is about 5-7%. The chances with an egg from a donor in her twenties is about 50% or higher.  If you are only committed to a 7% chance of success, it is really not a full commitment. And keep in mind what the carrier has to endure. She wants her efforts to result in a live birth, too, and is disappointed when it does not work.

People suffering from infertility can become obsessed and somewhat self-centered. They can be insensitive to the needs and feelings of others, especially their surrogate, since they are so wrapped up in their own despair. It sounds harsh to admit this, but I have witnessed it often.

Of course, we work with people in similar situations. We just hope the are willing to be flexible, and move on to plan B if plan A does not work out. Even in the best circumstances, a surrogacy arrangement is a bit of a gamble. You want the odds in your favor.

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Read information about our surrogacy program, both for surrogate mothers and intended parents.

This article is part one of a three-part series. Click here for Part Two and Part Three.

Reasons to Have a Child with a Surrogate: Bad, Not So Good, and Best

Surrogacy can be a risky endeavor, but not for the reasons most people think: the surrogate will get attached to the baby and keep it for herself, leaving the intended parents high and dry. This does not happen. Unfortunately, the sensational “Baby M” case in New Jersey twenty years ago still resonates.  That surrogacy was a “traditional” one, in which the surrogate was inseminated with the intended father’s sperm, and the child resulting was indeed the surrogate’s biological daughter. Before the insemination, the surrogate signed a contract relinquishing her rights to the child in exchange for money. This contract was unlawful and the courts rightly determined it invalid. No parent can lawfully relinquish parental rights to an unborn child.

Now, however, the vast majority of surrogacies are not “traditional,” but “gestational.” Surrogates, or “carriers,” as we prefer to call them, do not become pregnant by insemination. An embryo is formed with sperm and egg from the intended parents (or donors) through in vitro fertilization (IVF), which is then transferred to the carrier’s uterus for gestation. So the carrier has no genetic relationship to the child, and contracts enforcing the rights of the intended parents are lawful (in states where surrogacies occur). The baby belongs to the intended parents from the start, even when adoption proceedings are necessary, and the carrier has no legal claim. When a live birth results from a surrogacy arrangement, it is a truly joyous event for all involved: intended parents and their family and friends, carrier and her family and friends, as well as the professionals who helped make it happen. There is good will all around.

But although surrogacy is not risky for the reason people think, I still consider each arrangement a delicate house of cards for a host of other reasons. This is especially true when an egg donor is involved, since there are so many players and schedules to coordinate. The medical part is the most unpredictable: will the carrier and donors pass their screenings? Will the egg retrieval yield good results? Will the embryo transfer take? There are so many variables and opportunities for snags. But a successful surrogacy is a wonder to behold.

Success depends on the commitment of the carrier and as well as the egg donor, if one is required. Commitment is of course required from the intended parents as well, and in my experience, theirs poses an equal risk. We see intended parents withdraw (before the embryo transfer takes place, that is), leaving the carrier hurt and feeling rejected. That is why I urge those who are considering using a surrogate to think long and hard about their motives. From talking to so many people who have considered surrogacy, I have compiled a list categorized by risk level. See where yours fit in.

BAD reasons to consider surrogacy

I want to delegate the pregnancy to someone else because I am too busy; I don’t want stretch marks; I am scared of being pregnant and giving birth; I don’t want to gain weight, etc.

Fuhgettaboutit. These may work on an SNL skit, but they have no reference to reality. Nobody engages in surrogacy for these ridiculous, frivolous reasons. There must be a legitimate medical reason to use a surrogate, or the intended parents will not pass their required medical and psychological screenings.

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Read information about our surrogacy program, both for surrogate mothers and intended parents.

Click here for Conceiving Through Egg Donation (9 of 10): Confidentiality and Anonymity.

Donor Reserving, Screening, and the Egg Donation Contract

Once you’ve made your choice, signed the contract with the egg donation agency, and paid your fee, your clinic can start the screening process. The agency will typically send an official “match sheet” (with the names of you and your egg donor), and the donor’s complete file to the egg donor coordinator at your clinic. The donor will have to fill out the clinic’s own application as well (obtained through the agency or directly from the clinic). One of the nurses will set up the egg donor’s screening appointments, which may occur all in one day, or broken up into about three separate appointments. Screening comprises a meeting with a social worker/psychologist (an MMPI test, a Minnesota Multiphasic Personality Inventory, is sometimes administered), a meeting with a genetic counselor, a doctor’s examination, and a series of blood tests for infectious and hereditary diseases.  It takes about three to four weeks to get the results back.

Most egg donors pass their screenings. Any donor who does not will be informed by a doctor directly. If your donor does not pass, your clinic will inform you, and your agency should work hard to find you a replacement quickly. If some genetic findings are inconclusive, you will be counseled by your doctor about the possible risks, and may choose to find another egg donor.

When working with a private agency, an egg donation contract is customarily required to outline the rights and responsibilities of the donor and recipient(s). (When using a donor from a clinic’s program, medical informed consent forms are all that’s usually needed.) If there are lawyers who own or work for the agency, outside lawyers should be recommended to draft the contract in order to avoid any potential conflict of interest. Agencies are used to working with the same handful of lawyers for these contracts, and they offer very similar basic models. Your attorney’s fees should amount to about $1,000. The egg donor also gets assigned her own lawyer to review and explain the terms, which costs the recipient around $400. You could of course get your own lawyer to draft the contract, but it will probably take more time and end up costing you more. There is a relatively small community of experienced assisted reproduction lawyers who do this work frequently. It is best to choose from within this group.

Egg donation is said to fall under an “unsettled area of law,” meaning that there is no established legal precedent that governs it. At this point in time, anonymous donor eggs have been considered in the same way as anonymous donor sperm. The egg donor has no claim and holds no responsibilities to any eggs, embryos, or resulting offspring. As soon as the eggs are retrieved, they are viewed as the property of the recipient. The recipient may fertilize the eggs, implant them, cryopreserve them (as eggs or resulting embryos), and or handle/dispose them in any way the recipient chooses, in accordance with FDA regulations. In anonymous arrangements, she may be informed of the number retrieved but not whether a pregnancy or live birth results.

The compensation schedule and amount is also included in the contract. It should not be acceptable for the egg donor to be held responsible for any medical fees if she does not pass her screening, or for any punitive fees of any kind should she not be able to complete her donation (except in cases of willful fraud). She should not have to put herself at financial risk in order to donate eggs (the medical risk should suffice); the financial responsibility should be the sole responsibility of the recipients. Travel and per diem expenses should be reasonable, as negotiated by both parties. The name of the oocyte donor insurance policy should also be specified; this is typically purchased by the IVF clinic (as part of the patient’s fee) or if not, the agency purchases it with recipient funds. It costs $400 in most states ($180 in Massachusetts and Rhode Island).

In our experience, the contract phase goes very smoothly. Any wrinkles are usually easy to iron out: after all, it is in the recipient’s best interest to create and maintain good will in the relationship with the egg donor. Once both parties sign the contract (anonymity is maintained by assigning codes to replace names) and the agency receives the compensation and expense funds to hold in trust, the actual IVF cycle can begin.

What happens to donor eggs after they are retrieved? Do I get to know the results? Do I meet the recipients or potential offspring?

After the donor egg retrieval, the eggs are fertilized and then observed for a few days. Not all will fertilize or develop. Between one and three embryos will be transferred to the recipient. If any viable embryos are left over, they will be frozen (embryos hold up better in the freezing process than eggs do). It takes about six weeks to find out if a pregnancy results.

The majority of egg donor cycles in the US at this time are mutually anonymous: the donor egg recipients and the egg donor may know general information about each other, but they do not know each other’s names and they never meet. If working in a mutually anonymous arrangement, you may be informed of the number of donor eggs retrieved, but not the number actually fertilized or whether a pregnancy or live birth resulted. If you are working non-anonymously, you may get more information, depending on the arrangement. Some donors meet their recipients with the supervision of a social worker, and leave the opportunity open to meet any potential offspring. Both parties agree to the anonymity level before the match is made.

Click here for Conceiving Through Egg Donation (8 of 10): Repeat Egg Donors.

Anonymity and Openness in the Egg Donor/Recipient Relationship

When working with a private egg donation agency, as long as there is mutual consent between egg donor and recipient, the relationship can be as closed or as open as both parties desire.  The idea that the donor and potential offspring would knowingly meet one day instills anxiety in some donors and recipients, and comfort in others. It is a completely personal attitude.

Egg donation has not had the chance to evolve the way adoption has regarding openness and public acceptance. In the past adoption was shrouded in secrecy and anonymity, but now it is commonplace for domestic adopting parents to meet birth parents (typically before the birth), and adoption is celebrated for what it is. There still may be, for some, a stigma attached to egg donation, which creates the desire to keep it private or even secret. After all, you chose an egg donor who resembles you so your child could “pass” as your own. You don’t want your child and other family members to feel he or she is only “related” to the paternal side. On the other hand, secretiveness is unfair to the child and creates an unhealthful atmosphere. Egg donation will never lose its stigma until it is pushed out in the open by brave parents. Not everyone is willing to be a hero, however.

Still, it remains a basic right to know how you are brought into the world. Some prospective parents even go so far as to request donors with A-positive blood types, for instance, under the assumption that the child would be unable to figure out his or her mother was not genetically related.  We don’t encourage this kind of deception, but we do believe that anonymity between egg donor and recipient is fair.

We have had success, however, with non-anonymous relationships, too. But ground rules must be established. Once the seal of anonymity is broken, donor and recipient must determine to what extent they should be involved in each other’s lives, and in the lives of any potential offspring. Everyone must agree where to draw that line. Do you want to meet the egg donor? In person?  Through a phone conversation? Will it be a one-time meeting or a series of meetings? Will you exchange full names and contact information? Will the child have any contact with the donor? If so, when and how?

Typically, recipients request a one-time meeting. If you really want the egg donor to be part of the child’s life, the fact that she is genetically related to the child may raise some unchartered legal issues. However, these same issues have been overcome for adoption, and a similar evolution may occur in egg donation. We are just not there yet.

When both egg donor and recipient are open to a non-anonymous relationship, qualified counselors, obtained through your agency or other source, should negotiate the points of contact, whether it is a phone conversation, exchange of letters, or an in-person meeting. You can state your intentions for future contact in the egg donor contract, but they are not necessarily legally enforceable.  Some parents just want to know if the donor, in theory, would be open to meeting any potential offspring at some point in the future. Some egg donors have a relaxed attitude, and others reject it outright. Their feelings have the same wide range as the recipients.

Keep in mind that you will always have photos and a full description of your donor for your reference, and to show your child when you choose. As more babies are born through egg donation, there will be more support and guidance for parents and children on how and when to confront the issue. As it now stands, your IVF clinic will keep records on file in case any medical emergency arises which would justify revealing the identity of the egg donor. If you work with a private agency, expect them to do the same.

Will egg donation affect my future fertility?

No relationship between egg donation and future fertility has been clearly established, although research is continuing.

Egg donation does not deplete your ovarian reserve. Each month you release a number of eggs, but only one comes to maturity, generally. The hormones administered in the egg donation process stimulate more than one to reach maturity. Women in their 20s have hundreds of thousands of viable eggs, although the number diminishes over time.