Navigating the uncertain waters of international third-party reproduction

By Steve Snyder, executive director of IARC


Intended parents who wish to have children through third-party reproduction, but face highly restrictive and conflicting laws and regulations in their home countries, are increasingly crossing international borders to have their genetic children abroad. 

Although the world is getting smaller and international borders are becoming more and more blurred, conflict among nations is developing over the nationality and citizenship of children born via international surrogacy arrangements. Intended parents must be aware of the complications that can arise when crossing borders for third-party reproduction.

Unintended Consequences
This new prevalence of international reproduction cases has led to numerous unintended consequences that arise from conflicting international parentage and immigration laws. Before intended parents from the U.S. decide to go abroad for third-party reproduction, it is important to explore the laws in both the U.S. and in the country where the child will be born surrounding establishing legal parentage, acquiring desired citizenship, and obtaining a birth certificate and passport (for more information, visit the U.S. Department of State website). 

Establishing Legal Parentage
Countries have different rules regarding the local parentage of children born through third-party reproduction.  For example, a child born via surrogacy in the U.S. has U.S. citizenship based on birth in the U.S.   Whether the child has the dual citizenship of his or her genetic or intended parents varies from country to country.  A child born via surrogacy in India does not have Indian citizenship.  Whether he or she has the citizenship of the genetic or intended parents again varies depending on the parent’s home country.  Such issues and variations can cause disconnects between intended parentage and citizenship and actual parentage and citizenship that may prevent the child from returning to the parent’s home country or obtaining the parents’ citizenship.  This is often profoundly affected by whether the genetic components that are used are the intended parents’ or a donor’s.
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What to look for in an agency

IARC agency staffFor couples and prospective parents in need, an agency is a crucial guide through the surrogacy and egg donor process and will be your advocate through any legal pitfalls and medical uncertainties. For surrogates, an agency with years of experience and a laundry list of services is a key protector in this profound, life-changing experience.

Hopeful parents and prospective surrogates alike should ask questions of their agency, but it can be difficult to know what questions need asking. When you’re searching for an agency, there are things to look for that can demonstrate that agency’s knowledge, experience and dedication to you.

How long has the agency been around?

Anyone can start a surrogacy agency—there are no federal regulations that determine how and by whom an agency can be run. Your agency needs to demonstrate awareness of the guidelines published by mental health, medical and legal professionals that are in place to make this process safe and secure. IARC does not just follow these guidelines—we strive to lead the way in creating new regulations that benefit the industry as a whole.

You should also expect your agency to have years of diverse experience serving surrogates and couples alike. Our agency has facilitated over 1,000 programs over the past—not a single one has been the same as another. As each unique program is completed, we learn more about how this field works, what surrogates need throughout their program to feel valued and secure and what intended parents need to find success.  With over 20 years of experience, we truly are one of the most experienced egg donor and surrogacy agencies in the country.

Surrogate evaluation

A good agency will fully screen surrogates before they are matched with intended parents. If an agency says that the matching process can be sped up by not paying the prescreening costs out-of-pocket, they’re doing it wrong. Screening takes the same amount of time, whether it is done prior to being matched or after. IARC recognizes how much time, energy and emotion intended parents and surrogates put into the matching process. We want all parties to understand what the issues are and make sure that everyone is being treated respectfully.

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Becoming a surrogate mother: My decision to work with an HIV positive couple

Becoming a surrogate mother is a big decision, and many considering this decision want to know what it is like to be a surrogate. In this blog series we hope to shed some light on the surrogacy process through the experiences of our past and current surrogates, Charity, Nicole and Jaime. This is the first post from Jaime. 

Surrogate Mom - Jamie

When I signed up to be a surrogate, I was signing up to help someone in need. I knew I was willing to help any couple in need without discriminating. The agency that I worked with was amazing from start to finish. I felt they were always looking out for me and I had faith that the process would be a smooth one. From the caseworkers to the doctors, I always felt they had my needs met and that they were very appreciative for what I was doing. These families start out as complete strangers and end being life-long friends. I can honestly say that surrogacy has been the most rewarding experience in my life.

After my first successful journey, the agency called me to see if I’d be willing to meet another family and carry for them. Originally, I had planned to carry just the one time, but being that it was such an amazing experience, I agreed to meet another family. Why not? Pregnancy didn’t slow my life down at all, and my son was old enough to understand what I was doing, so we moved forward.

When they chose the next couple for me, they explained to me that one of the parents was HIV positive and explained to me in full detail the process that sperm goes through to be washed before the embryo is created (to learn more about sperm washing, click here). I had a phone consultation with the doctor I’d be working with, and, again, I felt watched out for. I actually felt the risk of infection, for anything, was lower than a non-HIV carrier because of all the extra testing administered.

Maybe I’m too trusting in people, but in my mind, I really felt that the agency, as well as the doctors, would not put me at risk by taking on this couple, so I felt safe to move forward. I realize that a woman who qualifies to be a surrogate and agrees to be one is hard to come by. The agency knows that if I have another successful journey, I would be likely to be a surrogate for another family. If I was hurt or infected in any way, I would not qualify for another round, which helped with my justification of not discriminating against this couple that had a little extra obstacle in their profile.

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HIV-positive sperm donation has zero risk for surrogate mothers

Prospective surrogate mothers may find the possibility of HIV-positive sperm donation frightening. And perhaps rightfully so—the virus and its debilitating effects are estimated to affect 1.1 million people in the United States. The statistic for documented transmission of HIV to surrogate mothers or their offspring via in vitro fertilization is much more encouraging: zero.

At one prominent clinic, the Bedford Research Foundation Clinical Laboratory, cutting-edge HIV-testing protocols and a medical procedure called “sperm washing” has made the risk of transmission from an HIV-positive parent virtually nonexistent. As of September 2011, no one using tested semen as a surrogate through in vitro fertilization has been infected.

Sperm washing gives surrogate mothers a profound level of safety and security in HIV-positive sperm donation. In an HIV-positive male, the virus lives in the seminal transport fluid—not the semen cells. By placing sperm samples in a centrifuge tube and spinning at high velocity, doctors can separate the infected seminal fluid from the semen cells. Then, only those semen cells that test negative for the virus are inserted into the surrogate egg.

Nothing in life is absolute, but you’d be hard-pressed to find a safer avenue for helping HIV-positive parents realize their dream of creating a family.

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Becoming a surrogate mother: Meeting the intended parents for the first time

Becoming a surrogate mother is a big decision, and many considering this decision want to know what it is like to be a surrogate. In this blog series we hope to shed some light on the surrogacy process through the experiences of our past and current surrogates, Charity and Nicole. This is the second post from Charity, if you’d like to read her first post click here

Charity Photo

The very first surrogate baby I ever had turned 11 at the end of May this year, yet I remember the entire journey like it was yesterday.

I remember on the flight to the clinic that my husband and I were both very nervous and excited. We were going to meet our intended parents for dinner and share in their excitement for the embryo transfer scheduled to take place the next day.

When we got to our hotel room, there was a message that K&V were waiting for us. “Call when you get in,” it said.

Despite the fact that we had spent a few months calling and emailing with each other, I felt a nervous flutter when K answered the phone. It was a rush of excitement and anticipation. We agreed to meet in the lobby at 4:30 and go find someplace to have dinner.

I’ll never forget that first hug from my intended mother. She was a little stiff and a bit reserved. Me, I’m a hugger. 🙂

We had a great time at dinner. Our husbands each had a beer, and V & I sat over our sodas and talked about the excitement of the transfer.

K&V had always known they would need help in order to have a family. They were young – in their mid-20s. I think that helped our connection since they are about the same age as my husband and I. It was heartbreaking to hear V’s full story. It was that moment that it really hit me how blessed I’ve been to be able to easily get pregnant and have a child.  Not everyone is that fortunate.

You really start to think about all the things you take for granted. For V, this was her first chance at a family. I’ll always remember how nervous K was (LOL).  His nervousness continued throughout the entire journey (and the birth for that matter)! We called it an early night since the excitement was a bit much for all of us.

The next day the four of us met in the lobby to head over to the clinic for the embryo transfer. We chatted like old friends all the way there but did not talk about the, hopefully, upcoming pregnancy.

Surrogacy for gay couples: What you need to know

Same Sex FamilyFor intended parents, whether single or coupled, going through the surrogacy process can be a long, confusing and emotional journey, but for gay prospective parents there is an added layer of legal complications that must be navigated. This post is meant to help gay men who are considering surrogacy get smart on what questions they should be asking, who they should be talking to, and how to go about the process in the safest and easiest way.

Step 1: Find an experienced lawyer

One of the first things any gay man or couple looking to have a baby through surrogacy should do is consult with a lawyer who specializes in surrogacy and is specifically familiar with issues related to gay partnering, marriage, adoption, and parentage. These are unique issues, and not every lawyer fully understands the issues and their ramifications. Ask any lawyer you are interviewing how many gay clients he/she has represented and what the extent of his/her working knowledge is of such issues. If the lawyer doesn’t have enough experience to make you comfortable, keep looking.

Step 2: Find an experienced agency

For the greatest success and certainty in your surrogacy program, find a reputable and experienced agency. Finding an agency that is run by an experienced attorney simplifies both of the first two steps. (For a list of other qualities to look for in an agency, read this post.) Again, gay men should look for an agency that is knowledgeable about specific challenges related to surrogacy for gay intended parents. For example, gay surrogacy occasionally needs professionals experienced and familiar with surrogacy for HIV positive intended fathers and the use of sperm washing to keep the participants safe. (To learn more about sperm washing, read this post.) The right agency will understand such issues and serve as a guide and advisor to the gay intended parent throughout the entire process to make sure all steps are followed at the appropriate time and in the appropriate order. This is the best way to insure a safe and successful outcome. Not all agencies are astronomically expensive. Some take into account that raising a child is an expensive endeavor in and of itself. Carefully compare and contrast agencies, their costs, and the services they provide. 

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Intended parents, donors and their legal rights: Time to rewrite the law

By Steve Snyder, executive director of IARC

As third-party reproduction becomes more frequent to help infertile couples become parents, the old presumptions of legal parentage need to be re-evaluated.

Currently, those presumptions remain based on certain birth and genetic assumptions that do not take parental intent into account. For example, in most states — unless the donor donates to a heterosexual married couple under the supervision of a licensed physician with certain written consents in place — the donor’s presumptive legal parents are not terminated no matter what the parties’ intent is.

Steve Snyder, Executive Director IARC

Those presumptions are now outdated in cases of sperm and egg donation because of medical, reproductive and social advancements. Many families are being created strictly as the result of the procreative intent of aspiring parents who cannot provide all reproductive components.

In such cases, the law should establish and protect the legal parentage of those who intend to procreate, but it does not yet do so universally and uniformly.

Legally, we’re not in Kansas anymore

This disconnect between procreative intent and parentage law is occurring in Kansas. William Marotta, a sperm donor who answered a Craiglist ad, provided his sperm to a lesbian couple to create a child to legally raise as their own. The donation was memorialized in an express donor agreement.

However, because Marotta and the couple did not use a licensed physician, the sperm donor’s parental presumption was not effectively terminated. Consequently, any interested party could establish the donor’s legal parentage despite the parties’ contrary intent.

It wasn’t until the child’s intended legal parents applied for state aid for “their” child, however, that the county attorney became an “interested party.” The law mandated that the county attorney must identify and pursue all presumptive legal parents for reimbursement for the state aid provided to the child.

Under the statute, Marotta remained a presumptive parent, and the county attorney has successfully established the sperm donor as the child’s legal father for support purposes. According to the court and Kansas law, he is now considered the father to a child. This is contrary to the intent of all other relevant parties and the express donor agreement.
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Maternity and prenatal: An essential benefit, but is it essentially covered for surrogacy?

Prior to the Affordable Care Act, if you were pregnant and without insurance, you faced an uphill battle to get medical coverage — resulting in massive bills and possible debt.

Due to the nature of what insurance companies previously defined as “pre-existing conditions,” such essential benefits like maternity and prenatal care were left uncovered. Or worse, plans had such long waiting periods for coverage that a child would be birthed by the time coverage went into effect.

For women and intended parents entering surrogacy, the legal waters were even murkier for insurance coverage. Many times surrogates who had insurance held the assumption that their pregnancy was covered; however, many insurance policies explicitly excluded coverage for women carrying a child for another family. Intended parents also faced challenges in using their coverage to support maternity and prenatal care, leaving both the surrogate and intended parents at risk for substantial hospital bills.

The “Obamacare” effect

As intended parents and surrogates embark on a journey toward child delivery, it’s important to understand the health care coverage landscape in the age of what many call, “Obamacare.”

With the enactment of the Affordable Care Act (ACA) in 2013, the U.S. government defined 10 essential health benefits (EHB) that are mandated to be covered for all Americans enrolling in a health care plan. Within this list of 10, maternity and prenatal care is now considered essential coverage.

Steven Snyder, executive director at the International Assisted Reproduction Center (IARC®), said of the law’s enactment and its impact on surrogacy coverage, “By defining essential benefits and taking away pre-existing conditions and other exclusions that could impair maternity and prenatal care, the ACA may improve the ability of women who are acting as surrogates to have their maternity expense covered by insurance.”

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Sperm donation requirements: A look inside the Kansas sperm donor legal case

Sperm Donor Legal RequirmentsThe case of a Kansas man who is being sued by the state for child support is gaining national attention. If you are considering donating sperm (or eggs, for that matter), it is important to know the donation requirements and laws to protect yourself from legal implications, such as this one.

Sperm Donor Laws: The Kansas Case

According to the Associated Press, in 2009 a Kansas man answered an online ad for a sperm donation for a lesbian couple looking to have a child. The three signed an agreement that they believed severed the man’s parental rights. However, Kansas law states that a sperm donor is not the father of a child only if a doctor handles the artificial insemination. The law does not specifically address the donor’s rights and obligations when no doctor is involved, which was the situation in Kansas.

A few years after the child was born, the couple fell on tough times and needed to receive state assistance. This caused the state to look to the father to pay the state for approximately $6,000 in public assistance that was given to the couple, as well as pay child support.

Sperm Donor Requirements: How to Protect Yourself

Know sperm donor laws

Although the laws may be in need of updating to keep up with modern family planning, it is important to know the specific sperm donor requirements and laws in your state before you make or receive a donation.

Many states have similar laws to Kansas that require a doctor to assist in the insemination process.   Other state laws allow donation only to a married couple with written consent from both the husband and wife.

Every state may have a different law, and, if two states are involved the process can be even more complicated. If the necessary requirements to address the donor’s presumptive parental rights are not taken, it may be the law of the state where the custodial parent lives (and applies for state aid) that will govern, not the state where the original insemination took place.

Most states still determine parentage based on either giving birth to the child, being married to the birth mother, or being genetically related to the child, among other tests. Progress is being made and some states have begun to implement “the intent tests” – a determination of parentage based on the intent of the parties rather than genetic or birth relationship. Our hope is that the laws will continue to evolve to keep up with modern families, but since the original intent of the parties is now the most important factor in reproduction using a donor and/or surrogate, making sure that intent can be effected under the existing laws of the governing state is critical to success.

Seek professional help

The laws can be complicated and are constantly changing, which is one of the main reasons why fertility lawyers and agencies exist. To help donors and intended parents navigate the process and ensure a successful, legal experience for all parties.

Cheaper is not always better

Can you go on and buy a home insemination kit for $29.95? Sure. But as the man in Kansas is learning, that is not always the best—or in the end, the cheapest—option.

The Bottom line

Cases like these are only going to become more prevalent as people and science redefine ways to make a family. The best way to protect yourself is to seek professional help as you are beginning to research your options.

How To Find A Surrogate

How to Find a SurrogateChoosing a surrogate mother can be a challenging first step for many intended parents. However, there are several sources that intended parents can use to find a surrogate mother who is appropriate and reliable.

Surrogate option: Relatives, Friends or Co-workers

One potential source for a surrogate is relatives, friends, or co-workers.

One of the advantages of finding a surrogate whom the parents have an existing relationship with is that it maximizes the feeling of comfort and trust among the parties. This initial trust level can help minimize the parents’ inherent fear that the surrogate will change her mind and want to keep the baby. The ongoing relationship among the parties also increases the likelihood of a continued relationship between the family and surrogate after the child’s birth. This allows the intended parents to have access to the surrogate’s developing medical history, which is important if the surrogate’s own egg is used because her genetic make-up is passed on to the child.

Another advantage is that when intended parents have a relationship with their surrogate it is more likely that the surrogate will charge only a modest fee or no fee at all.

It is important to also weigh the disadvantages in using a relative, friend, or co-worker as a surrogate.  The first is that, in order to volunteer, that person must know of the parents’ situation that led to them deciding to use a surrogate. Not every intended parent discusses such private family issues openly. Additionally, becoming a surrogate is a big commitment and not everyone is lucky enough to find someone willing to help.

Another potential disadvantage is that these volunteers have not been screened and may not be medically, psychologically, or emotionally suited to participate in third-party reproduction. Substantial screening must take place before an agreement can be made, and, if the volunteer is not suitable, there may be a delay while the parents look for another candidate.

There is also a very real risk that going through the surrogacy process together may create conflict among the parties and that unrelated conflict in the parties’ relationship may unnecessarily complicate the surrogacy process. Although there are many success stories involving sisters who have carried babies for their siblings, there are also parents who have regretted using a sister to carry their child because of various negative emotional family issues that have surfaced only after the pregnancy has occurred.

Using a surrogate who is already part of the parents’ social network also complicates the issue of the surrogate’s post-birth contact with the child, especially if the parents want to minimize such contact.

Finally, many administrative details must be managed for the process to go smoothly, and one of the parties will have to take on these administrative responsibilities unless they hire an attorney or other entity to do so.

Surrogate option: Surrogate Mothers Online

Another way to find a surrogate is to surf various websites and find a surrogate who is individually marketing herself to intended parents. Finding a surrogate online has the advantage of significantly increasing the number of potential candidates that the parents can consider.

If the surrogate’s egg will be used, this allows the parents to more easily select a surrogate who shares certain physical characteristics with one of the intended parents if that is important to them. They can also select a surrogate who has no prior or ongoing relationship with their family, thereby permitting a more “anonymous” process.

The Internet also expands the geographic scope of the search for a surrogate, which is especially important for parents who live in a state where surrogacy is limited or banned. Since the law of the state where the surrogate resides normally governs the outcome of the process, as opposed to the law of the state where the parents reside, parents can look for a surrogate in a state where third-party reproduction is permitted. In addition, this type of search allows parents to find a surrogate without incurring the additional fee typically charged by agencies who offer to match them with a surrogate.

With these benefits come certain disadvantages. Surrogates who advertise online are typically in close communication with other surrogates on the Internet in various chat rooms. They are educated on the “market rate” for their services and often charge premium fees (currently around $25,000 or more). The motivation for these candidates is usually more financial than altruistic, and this may make the process feel more like a business transaction than warm, cooperative family-building.

Furthermore, these surrogates have usually not been screened to determine their suitability for third-party reproduction, so the potential for them to fail the screening and delay the process still exists.

If inadequate screening is done, these candidates are the ones who may most likely “change their minds,” even if only to leverage better compensation from the parents. While the parents may want to sever personal contact with the surrogate after the birth, it may be beneficial to keep getting medical information about the surrogate. This can be difficult with an individual surrogate since she may be hard or impossible to find several years after the birth.

Finally, if the surrogate is in another state, it is challenging to maintain the communication, arrange the medical procedures, and implement the financial arrangements among the parties. These administrative burdens will fall either on the parents or the surrogate during the pregnancy (while everyone would rather be focusing on the miracle of birth than the business details of the process).

Surrogate option: Surrogacy Agency

The final source for finding a surrogate is to contact a reputable surrogacy agency to find a surrogate that has been identified and pre-screened for suitability.

This source has the same advantages as finding an individual surrogate on the Internet without the disadvantages. Parents can still select from a large pool of candidates, and they still have sole discretion to select a surrogate based on their own individual criteria.

However, a reputable agency will typically have numerous pre-screened and suitable surrogates available to pick from, so there will be no unexpected delay. These available candidates are screened to find a reasonable balance between their desire for compensation and their desire to give the gift of their services. As a result, they are often available for a more reasonable fee, and are much less likely to change their mind.

In addition, once the surrogate is picked, an agency will usually help negotiate the terms of and refer the parents’ to an attorney who can draft the surrogacy agreement on the parents’ behalf. A full-service agency will arrange and manage all of the administrative details of the process, including ongoing communication between the parties, necessary travel and lodging, medical procedures, financial arrangements, and post-birth legal procedures.

An agency will also stay in communication with the surrogate after the birth in order to monitor and facilitate the continuing exchange of necessary information about the surrogate’s medical history, if desired. This allows a buffer between the parents and the surrogate for post-birth privacy purposes when the parents prefer it.

The challenge in using a surrogacy agency is finding a reputable one. Significant inquiry and research should precede the parents’ selection of an agency with which to work. Just as in all professions, there are good ones and bad ones, and the bad ones should be avoided.

Another disadvantage of using an agency is the additional agency fee, which can run as high as $20,000.  This obviously increases the financial burden on the parents in their effort to have a child. Whether the services provided by an agency justify the fee depends on the individual circumstances and perspective of the parents.

(This article is not intended as legal advice and should not be relied upon as such. Each family and agreement is unique, so you should hire a competent attorney to advise you specifically about your particular case.)

Steven H. Snyder is an attorney experienced in assisted reproduction and surrogacy law.

Please contact us if you have questions or issues that you would like him to address.