The first challenge that faces intended parents in third-party reproduction is finding someone willing to act as a surrogate. There are, however, several sources that intended parents can use to find an appropriate and reliable surrogate.
The first source is relatives, friends, or co-workers who are aware of the parents’ situation and volunteer to assist them. One of the advantages of finding a surrogate with whom the parents have an existing relationship is that it maximizes the initial feeling of comfort and trust among the parties. This initial trust level helps, in turn, to minimize the parents’ inherent fear that the surrogate will change her mind and want to keep the baby against the parents’ wishes. The ongoing relationship among the parties also maximizes the likelihood of sustained contact after the child’s birth so that the intended parents can monitor the surrogate’s developing medical history as it may relate to the child. This 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 this source of surrogates is the one most likely to yield a surrogate who will charge only a modest fee or no fee at all.
There are also numerous 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 and intent. Not every intended parent discusses such private family issues openly. Even if the parents are actively advertising their situation in order to raise the interest of a possible volunteer, they may not be lucky enough to find anyone willing to help them.
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 this is determined, and, if the volunteer is not suitable, a significant unnecessary delay may occur while the parents look for another candidate.
Even if the volunteer successfully passes the preliminary screening, there is a very real risk that going through the surrogacy process together may create conflict among the parties and/or 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 between the siblings 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 disclosure to and contact with the child, especially for parents who may wish 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 assume these administrative responsibilities unless they hire an attorney or other entity to do so.
Another way to find a surrogate is to surf the various websites on the Internet and find a surrogate who is individually marketing herself to intended parents. Finding a surrogate on the Internet 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 if that is the parents’ preference. 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. These parents can then look for a surrogate in a state where third-party reproduction is permitted since the law of the state in which the surrogate resides normally governs the outcome of the process, not the law of the state where the parents reside. 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 on the Internet 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 for their services (currently around $25,000.00 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, they may want to keep getting medical information about the surrogate. This may 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).
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 by the agency. 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 available numerous pre-screened and suitable surrogates from which to pick, 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 they 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. Moreover, a full-service agency will arrange and/or manage all of the administrative details of the process, including ongoing communication between the parties, travel and lodging, if necessary, 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 an 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.
Steven H. Snyder, Esq., is founding and principal partner of Steven H. Snyder & Associates (www.snyderlawfirm.com) and Chair of the Reproductive & Genetic Technology Committee of the Family Law Section of the American Bar Association. This article is not intended as legal advice and should not be relied upon as such.