Ethical Surrogacy – Making the Right Choices

Ethical surrogacy is, and must be, the goal of an intended parent (IP) who is looking to have a family with the assistance of a surrogate mother.

Because of the different parties involved and the roles that they play, there must be a guiding, ethical roadmap for intended parents to follow to ensure that everyone has a successful and positive experience, an ethical surrogacy. Up until very recently, no such roadmap existed for intended parents.  Doctors have such guidelines in the ASRM (American Society of Reproductive Medicine) Recommendations for Practices Utilizing Gestational Carriers.  Attorneys also have such guidance in numerous articles and section committees dedicated to issues surrounding surrogacy.

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Now there is a place where intended parents can go to review best practices and baseline protocols for ethical surrogacy, ensuring that each IP has the tools to create an ethical journey. Men Having Babies (MHB), a non-profit organization of which I am the board chairperson, recently introduced A Framework for Ethical Surrogacy for Intended Parents, available online in English, French, German, Spanish, Italian and Hebrew.  This comprehensive document is supported by several LGBT organizations in America and abroad.

What is Ethical Surrogacy?

MHB’s ethical surrogacy framework revolves around the notion that surrogacy can be a wonderful and fulfilling experience for all parties involved, even if the surrogate is compensated for her efforts, risk and inconvenience. While compensation is part of the process, the act itself is not commercial because the IPs are not buying anything, particularly a child, which is a claim made by some anti-surrogacy activists.  A surrogate efforts should be compensated, even if the journey does not result in a pregnancy or in the case of a miscarriage.

How can Ethical Surrogacy be Achieved?

Regulation is the key to achieving ethical surrogacy. Having laws in place that require independent representation for all parties ( in their home languages), ensuring that all parties are vetted medically and psychologically, limiting compensation so as not to create irresistible incentives for participation and making surrogacy legal in each state and in each country so IPs and surrogate mothers do not have extraordinary distances between them, all work together to create an ethical surrogacy environment.

Reasonable and appropriate legislation should be enacted to allow perspective parents, donors and surrogates enter into legally enforceable agreements for surrogacy arrangements without having to cross state lines or country borders. This fosters more successful and fulfilling relationships between surrogate mothers and IPs.  Steps must also be taken to limit any medical risks that donors and surrogates face in the surrogacy process.

Baseline Protocols for Providers

Several baseline protocols should be implemented by service providers to ensure an ethical surrogacy experience including, but not limited to: informed consent from all parties, medical screening, social and psychological screening, independent legal representation (with language interpretation is required) before any treatments begin, medical insurance review from the surrogate mother and an agreement regarding contact during and after the surrogacy journey.

Best Practices

Best practices are suggestions for “above and beyond” thinking that is required of IPs because so much of the integrity of the journey depends on them. Among these suggestions is the creation of a long term vision about your family.  Who will be the biological parent?  How many journeys do you anticipate? What will the relationships be during and after the surrogacy?  How will you explain your family make-up to your child?  These questions are just a few of those that need to be asked and answered in the surrogacy process.

Above all, the autonomy of your surrogate mother must be respected and supported. While it may be your child that she is carrying, it is her pregnancy.  Insuring that she knows that you, as IPs, understand this distinction is critical to supporting her autonomy.  Her family and community will also play a role in her pregnancy, so getting to know her circle of support is a wonderful way of bolstering that support, making the journey a happy and healthy one for your surrogate mother.

While the MHB Framework for Ethical Surrogacy for Intended Parents goes deeper into the specifics of making your journey an ethical one, this article is designed to begin a conversation about the quality and success of your surrogacy journey.  After all, your family is worth it!  For more information, go to timeforfamilies.com or email Anthony at Anthony@timeforfamilies.com.

in Assisted Reproductive Technology / Egg Donation / Ethics / Featured Articles / IVF / Known Donor / Surrogacy  by Anthony Brown 3 comments

Compassionate Surrogacy – Options For Your Family

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Compassionate surrogacy, sometime referred to as altruistic surrogacy, is the process where a woman, the compassionate surrogate, carries a child of the intended parents with the intention of giving that child to the parents once it is born.

A compassionate surrogate does not receive compensation for her services.  It is a special person who can be a compassionate surrogate.  When is compassionate surrogacy the right choice for your family?  The answers depend upon several factors.

 

  1. Compensated surrogacy is currently illegal in 3 states: New York, Michigan and Louisiana. While that doesn’t necessarily mean you can’t use a surrogate in those states, entering a compensated surrogacy contract could incur criminal penalties depending on your state of residence. Compensated surrogacy means that the surrogate mother receives a fee for participating in the surrogacy process.
  1. If you want to go through compassionate surrogacy in New York, the surrogate cannot accept compensation outside of statutorily allowed medical and legal costs. The surrogate in these cases is often known by, and close with, the intended parents. It may be a family member as well. You will need a lawyer to determine what costs are and are not allowed to be paid by you, and also to draft a Memorandum of Understanding between the intended parents and the surrogate mother to outline the process and provide for all possibilities that may occur during the process from insemination to birth, and beyond.
  2. A surrogacy, or ART (Assisted Reproductive Technology) attorney must have extensive experience in these types of agreements and can help you and your partner or spouse learn what to expect, average timelines, required paperwork, and even let you know the average costs as well as what is and isn’t legal for you to pay for during the pregnancy.
  3. A compassionate surrogacy attorney can help you manage the relationship with the surrogate and provide dispute resolution that may be needed throughout the surrogacy process, in most cases through the surrogate mother’s separate attorney.
  4. The most critical aspect of compassionate surrogacy is establishing the parental rights of the non-biological intended parent.       Your attorney can help the non-biological parent petition for second or step parent adoption so that both parents have a legal relationship established to the child as soon as possible. Read this article for more information about the second/step parent adoption process.
  5. It’s extremely important to have a lawyer draft any agreement or Memorandum of Understanding between the intended parents and the surrogate mother. If there is a misstep in the contract, you and your child could potentially go through a lengthy and painful custody battle (not to mention the aforementioned criminal penalties in NY) should the mother change her mind. It would be devastating to lose your child over a technicality in the contract.
  6. The hardest part of the process to really grasp is that the Memorandum of Understanding is technically unenforceable in New York.  It’s purpose is to have the parties go through the process of discussing the elements of the journey and the possible contingencies that may occur.
  7. It is critical that psychological support services are provided for both the surrogate and the intended parents and that both parties thoroughly understand the process before entering into any agreement.

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There is currently legislation in New York State that would legalize compensated surrogacy. The Child Parent Security Act would not only make compensated surrogacy a legal option for NY parents, it would also allow both intended parents to be immediately legally recognized as parents at the birth of the child, thus negating the need for the lengthy process of second or step parent adoption by the non-biological intended parent. The CPSA would further protect the rights of surrogates, making sure they are not legally responsible in any way for a child they never intended to parent. While the LGBT community, as well as opposite-sex couples who may need a surrogate, are hopeful it will pass, the bill has been stuck in committee for many years.

If you’re thinking of expanding your family with the help of a compassionate surrogacy, start the process by speaking with an experienced attorney so you can get a solid idea of what to expect, and even if it’s the right decision for your family. As a leading expert in the Family and Estates division of Albert W. Chianese & Associations, Anthony M. Brown is here to help your family with all of its growing legal needs. Call 212-953-6447 or email anthony@timeforfamilies.com to answer any questions you may have concerning compassionate surrogacy or any legal questions concerning same-sex family planning.

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in Featured Articles / IVF / Legal / Parenting / Surrogacy  by Anthony Brown 2 comments