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.

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.

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.)

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.

“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.

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.