Egg Donation and Surrogacy

Self proclaimed “fertility planner” Angie Best-Boss, founder of My Fertility Plan, is quoted in the Washington Times (”Having a baby in the fertility maze: new specialty guides for parents“), regarding the value of her services:

“This is an industry that is not regulated at all. What you can’t get on Google is whether an agency is going to push you toward using an egg donor so that clinic can boost its stats.”

The misconception that the fertility industry is unregulated is so persistent, even so-called experts perpetuate it (out of ignorance and laziness). Fertility medicine is highly regulated by the FDA, and there are some firm ground rules set by the ASRM as well.*

On the second part of her statement: I do not know why an agency would have any interest in increasing a clinic’s statistics; I guess if the agency were affiliated with the clinic, this statement may make some kind of sense. But statistics are highly accessible to anyone, and you don’t need to hire a consultant for $125 an hour. I encourage all our clients to go to SART, click on For Patients, the Find a Clinic: plug in your zip code for a clinic near you or click on a state for all its registered clinics. There you can find the clinic’s CDC-reported statistics for the past few years, where they separate their cycles by donor and non-donor, and in the cases of non-donor, ages of their patients. If your clinic’s statistics seem less favorable than some others, discuss them with your doctor. Some fertility clinics take on more difficult cases, and this skews the results somewhat.

Fertility is stressful and painful; it can cause marital conflicts, financial distress, and a host of other problems.  There are a number of psychologists who specialize in this field. We recommend them to our clients when the counseling offered by the IVF clinic is not enough. But paying yet another party (in addition to the clinic, psychologist, insurer, agency, lawyer, donor, etc.) seems just too much for most people.

* For more information on fertility regulation, see David Adamson, “Regulation of Assisted Reproductive Technologies in the United States,: 39 Family Law Quarterly 722 (2005), as well as the ASRM Web site.

Today’s New York Times article (”Building a Baby, with Few Ground Rules“) describes cases that went wrong, even though it mentions in passing that most surrogacies work out just fine. I hope it does not discourage intended parents from pursuing surrogacy, or just make surrogacy appear unseemly in the eyes of the general public.

The Michigan and Indiana cases discussed did not follow the proper legal or medical protocols at all; in fact, the egregiousness is stunning. These surrogacy cases should have never happened in the first place. Michigan is one of the few states hostile to surrogacy and we, or any legitimate agency, would never allow a surrogacy to take place there. All the clinics we work with have very strict protocols in place for medical and psychological screening; the single man from New Jersey would have never even made it into our program (as we are careful about the intended parents we work with), let alone pass the psychological screening that would take place at the clinic.

The article mentions that the American College of Obstectricians and Gynecologists recommends that “surrogacies be handled by nonprofit agencies,” but I am unaware of any such agencies with the legal experience to handle such complicated arrangements.

The field of surrogacy (and assisted reproduction in general) is not as unregulated as commonly perceived.  In fact, there is case law and/or statutes in a number of US states, where surrogacy can be practiced legally and safely (see our article, “Assisted Reproductive Technology: Egg Donation and Surrogacy in Law and Practice,” in the Bloomberg Corporate Law Journal, for more specific information).  The source for laws or precedent governing any arrangement is the state where the baby will be born, since that is the state that issues the birth certificate and where parental rights are extinguished and established. So there should be prior procedures to at least draw from in the carrier’s home state; if any contractual performance (or birth) is to take place in other states, the laws in those states should be examined carefully as well.

It is true that issues of custody are clearer when both intended parents contribute genetic material. When fifty or one hundred per cent donor material is used, it is especially important for the intended parents to be screened by clinical professionals.