“More children are created through IVF, artificial insemination and
surrogate motherhood than are adopted each year . . .”
Lori Andrews, Attorney, Faculty Member and Medical Ethicist from Chicago-Kent College of Law, on CBS's Face the Nation with Bob Schieffer, Sunday, November 23, 1997.
Assisted reproductive technology has traditionally been the exclusive bailiwick of doctors. An infertile couple, conferring with a team of medical practitioners, focused on the delivery of medical services in an attempt to address their childlessness.
However, with the advent of third-party assisted reproductive technology (A.R.T.), the issues have expanded exponentially in encompassing medical, legal, ethical, moral, emotional, psychological, and religious tenets. The introduction of donated sperm, eggs, and embryos, along with the prospect that a woman, not the intended mother, would actually bear the child and surrender it upon birth to its intended mother, catapulted this issue out of the doctor's office and into society's consciousness. Horror stories such as that evinced in the Mary Beth Whitehead episode (In re Baby M, 537 A.2d 1227, 1248 (N.J. 1988)), have colored society's understanding of a family building option which, when properly implemented, succeeds well over 99% of the time.
Many of these options involve advances in medical technology, such as egg donation, in vitro (test tube) fertilization, and embryo transfer into the uterus of a woman who may or may not be ultimately its intended mother. Cryopreservation (freezing) enables the preservation of sperm, embryos, and with the recent breakthrough of Atlanta's Dr. Michael Tucker, eggs.
Other third-party assisted reproductive options which are decidedly more “low tech” such as traditional or artificial insemination surrogacy, simply reflect a change in perspective, although with obvious psychological and legal ramifications.
Often these third-party A.R.T. and surrogacy arrangements involve interstate and international elements, such as a genetic provider residing in one location and a surrogate residing at great distance. Potential conflicts of laws and cultural differences must be ameliorated.
Due to the nascent nature of third-party ART and surrogacy, the thrust of this presentation will be to create awareness of the numerous issues confronting practitioners. Of paramount importance is the fact that legal aspects must be considered an absolute “floor” to those entertaining third-party A.R.T. and surrogacy options. Merely because a couple might be able to fit their particular third party A.R.T. or surrogacy venture within the framework of a particular set of laws in whatever state, does not justify ignoring the other essential disciplines involved in third party A.R.T. or surrogacy options.
The conundrum facing any practitioner in this field is “what could be more complicated than a pregnancy in another woman's uterus?”
Third-party A.R.T. and surrogacy issues have considerable overlap, and hence these materials were designed with some intended redundancy.
The Legal Status of A.R.T. and Surrogacy in Georgia
Simply put, there is none. The only instance in which the author has been able to denote any anticipation that an infertile couple would have an interest in a child to be born in which one of the married couple did not have a genetic tie, lies in the area of traditional artificial insemination.
O.C.G.A. § 19-7-21, entitled "When Children Conceived by Artificial Insemination Legitimate" holds:
"All children born within wedlock or within the usual period of gestation or after who have been conceived by means of artificial insemination are irrebuttably presumed legitimate if both spouses have consented in writing to the use and administration of artificial insemination."
For whatever reason, Georgia was apparently the first state in the country to address this issue statutorily. This provision mirrors acts later adopted in other states, and presumes that the husband is the infertile member of the couple, and that donated semen would be utilized to impregnate his wife. It does not anticipate a scenario where the wife is infertile and a third-party surrogate has been located who agrees to be impregnated with the fertile husband's sperm. As the husband and the female surrogate are not married, the child would be considered to be born out of wedlock, and not legitimate.
This is not to say that legal recognition of third party A.R.T. and surrogacy family building options is not available; rather, it requires innovation on the part of the legal practitioner and some degree of providence (the author has served as counsel to numerous infertile couples who have at this juncture, universally successfully utilized artificial insemination surrogacy, gestational surrogacy, egg (ova) and embryo donation, and had the children born of such procedures recognized by the Georgia courts as their own children with birth certificates issuing accordingly).
The current statutory and case law in the state of Georgia contemplates traditional family building options. As such, its emphasis is historical, rather than forward looking.
Review of a short glossary of third party reproductive techniques and surrogacy options is a necessary predicate to examination of legal implications:
Artificial Insemination (traditional) surrogacy
The intended and genetic father donates semen, which is used to artificially inseminate the surrogate. The surrogate is hence the genetic mother of the child, although it is expected that she shall give up the child upon its birth, renounce all maternal rights and obligations, and that the genetic father and his wife shall treat the child as their own and assume all parental obligations.
Assisted Reproductive Technology (A.R.T.)
Procreative procedures which customarily involve the laboratory handling of human eggs, sperm, or embryos, including in vitro (test tube) fertilization (IVF) and embryo transfer into the uterus of the woman who will bear the child. It also includes Gamete Intrafallopian Transfer (GIFT), Zygote Intrafallopian Transfer (ZIFT), Intracytoplasmic Sperm Injection (ICSI), among other procedures.
A freezing technique where sperm and embryos are preserved for later use. Recently, Atlanta Embryologist Dr. Michael Tucker has been able to successfully freeze and thaw and later fertilize eggs. Cryopreservation may be used to preserve reproductive tissue as a precursor to cancer treatment; to quarantine sperm to address latency periods in detection of HIV/AIDS; and to split egg and embryo yields, so that some may be implanted Afresh@ in the donee, gestational surrogate or back to the donor, while some are frozen for later use.
A gestational surrogacy where only one (or neither) of the intended parents is a genetic parent, while the surrogate has no genetic tie to the child to be born. Commonly, the intended father donates his sperm, which is utilized to fertilize in vitro donated eggs, and the resulting embryo or embryos are transferred into the gestational surrogate, who will bear a child to whom she has no genetic link. Yet there are situations where embryos from third parties, not the intended parents, are donated for a surrogate.
The unfertilized female reproductive cell.
The union (fertilization) of sperm and egg, which constitutes a potential child.
The initial union of an egg and sperm, which can be in vitro (test tube), or can occur naturally or in utero through artificial insemination.
An arrangement whereby the intended parents donate their own sperm and eggs, which are fertilized in vitro (test tube), and transferred into the uterus of the gestational surrogate, who will carry the child or children to term. Upon birth, it is expected that the surrogate shall surrender the child or children to the intended parents, who will treat the child as their own for all purposes, and release the surrogate and her husband (if any) from all parental responsibility.
A laboratory procedure performed in an artificial environment outside a woman's body. Often in third-party A.R.T., fertilization of an egg and sperm into an embryo occurs in vitro (test tube) and is transferred into the uterus of the surrogate.
The male reproductive cell.
Assisted Reproductive Technologies
In more detail, the specific procedures employed in assisted reproductive technologies involve high technology and a combination of sperm and eggs to treat infertility. These include in vitro fertilization (IVF), gamete intrafallopian transfer (GIFT), intracytoplasmic sperm injection (ICSI), and zygote intrafallopian transfer (ZIFT).
In Vitro Fertilization (IVF)
The "oldest" procedure in this group is in vitro fertilization (IVF). The first baby born from in vitro fertilization was in 1978 in England. In vitro fertilization was initially used specifically for women with blocked fallopian tubes. In vitro fertilization is now often used for other infertility problems.
The assisted reproductive technologies involve a number of steps that initially are similar. The first step within vitro fertilization involves stimulating the ovaries to produce multiple eggs. This is important because only by transferring multiple embryos to the uterus is there a reasonable success rate with in vitro fertilization. There are a number of medications that are used to stimulate the ovaries. The most common combination at the present time includes the use of Lupron and Metrodin or Pergonal. Pergonal and Metrodin are forms of generic gonadotropin and there are now approximately 7 (seven) comparable medications. Gonadetropins are hormones which stimulate the growth and function of the gonads, which are obviously involved in the reproductive process; and on occasion, for recreational purposes.
Initial consultation with the physicians includes diagnostic testing such as a uterine sounding (by ultrasound) in order to determine the depth and position of the uterus for ultimate embryo transfer. Blood testing is also performed.
Next, the in vitro cycle begins. Barrier contraception is used beginning the cycle prior to the in vitro fertilization procedure. Beginning approximately one week after ovulation, or in a 28 day cycle around day 21, the woman providing the eggs receives a vaginal ultrasound, in order to determine the status of her ovaries. She will then be given the "go ahead" to begin Lupron. Lupron is a medication that is a gonadotropin releasing hormone agonist. It is given as a subcutaneous injection at approximately the same time each day in the thigh. The purpose of Lupron is to prevent premature ovulation. Prior to the use of Lupron, a number of women undergoing stimulation of their ovaries to produce multiple eggs would ovulate prior to egg retrieval. The most common side effects from Lupron include hot flashes, headaches and vaginal dryness.
When menstruation begins, another vaginal ultrasound is performed to determine the state of the donor's ovaries. If at this time the ovaries appear normal, the donor will be given a date to proceed and start her with gonadotropin therapy, using Pergonal, Metrodin or one of the other comparable medications. At this time the dose of Lupron will be decreased, usually to half the original dose, but it should be continued through the day of HCG injection. Human Chorionic Gonadotropin (HCG) is the hormone produced early in pregnancy to keep the corpus luteum producing progesterone, and is often injected to stimulate ovulation and progesterone production.
Pergonal and Metrodin are injections that are given in the hip intramuscularly. They are natural hormones, the same that are produced by the pituitary gland. Their purpose is to stimulate the ovary to produce multiple eggs. They are taken daily for five to six days, when a blood estrogen level and a vaginal ultrasound test are performed. The two tests will determine the dosage levels of Pergonal and/or Metrodin, and the dosages are correspondingly adjusted.
During the course of treatment, additional vaginal ultrasound and blood estrogen tests are performed, to determine the maturation of the eggs (which manifests in growing follicles). During this period, side effects can occur from the Metrodin and/or Pergonal which include: cysts on the ovaries, multiple births related to multiple eggs, and a condition called the ovarian hyperstimulation syndrome where the ovaries get very large and may cause significant discomfort and fluid in the abdomen. This is common in in vitro fertilization cycles in its mild form, however, very uncommon in its severe form. Nevertheless, if ovarian hyperstimulation does occur in its severe form it could necessitate admission to the hospital and careful monitoring.
When it is deemed that the follicles are mature, HCG injections begin. This gives the eggs their last maturational growth spurt. At that point, egg retrieval is scheduled.
Egg retrievals are now almost exclusively performed under ultrasound guidance without the need for a laparoscopy. The egg donor undergoes the retrieval procedure as an anesthesiologist provides intravenous sedation. Then, with the use of the ultrasound probe in the vagina and a needle alongside of it, the needle will be advanced through the back of the vagina into the ovaries and the eggs will be suctioned from the ovary. This procedure usually lasts 20 to 30 minutes, depending on the number of eggs.
The risks of this procedure are lower than that of a laparoscopy but can include: infection, bleeding that could even necessitate a blood transfusion or a more major surgery, and puncturing and injuring the bowel or the bladder, yet these are rare events. The egg donor then rests, while the prospective embryo recipient has been receiving progesterone injections (one cc given in the hip daily), which promotes the best possible lining for attachment of the embryos.
At the time of egg retrieval, the sperm donor provides a specimen to the IVF laboratory for fertilization of the eggs. There should be approximately three to five abstinence period prior to the day of egg aspiration/retrieval. The eggs are then fertilized in vitro with the donated sperm, and generally the next day the embryologist can report how many viable embryos have been created.
If embryos are to be transferred “fresh,” this is generally done within two to four days. Usually, four or fewer embryos are transferred, in accord with proposed American Society of Reproductive Medicine (ASRM) standards, and the recipient is confined, as much as possible, to three days of bed rest, avoiding strenuous exercise or intercourse.
Gamete Intrafallopian Transfer (GIFT)
Another procedure in the assisted reproductive technologies is the GIFT procedure. GIFT is a procedure utilized with at least one normal fallopian tube and no suggestion of male factor infertility involved. In the GIFT procedure the beginning of the cycle is identical to in vitro fertilization up until the time that the eggs are retrieved. The eggs are retrieved transvaginally under ultrasound guidance, similar to IVF. However, immediately following this a laparoscopy is performed and usually three to five eggs and the donor's sperm are placed into the fallopian tube and allowed to fertilize naturally in the fallopian tube.
The GIFT technique was developed in order to more closely simulate the natural process of fertilization in the body. The main disadvantage to the GIFT procedure is the necessity of a laparoscopy. However, the advantage is that the pregnancy rate is higher than in vitro fertilization. With couples going through the GIFT procedure, progesterone should be started 3 days after the GIFT procedure, not on the day of the GIFT procedure. In addition, the pregnancy test is then performed 12 days after the GIFT procedure.
Intracytoplasmic Sperm Injection (ICSI)
A procedure invented and pioneered by Dr. Michael Tucker, an Atlanta embryologist, which addresses male factor infertility. Essentially, where sperm lacked the motility to breach the protoplasm of an egg in order to reach the shadowed glories in an egg's nucleus to enable fertilization, a single sperm which shows the greatest prowess is selected. It is drawn into a thin glass tube and is injected through the egg's outer wall, through the egg's cytoplasm and into the egg's nucleus so that fertilization is effectuated. It is an enhanced form of in vitro fertilization (IVF).
Zygote Intrafallopian Transfer (ZIFT)
A hybrid of in vitro fertilization and GIFT, which is seldom used due to the advent of ICSI.
As one can no doubt discern, the medical procedures alone are of considerable complexity and expense. Legal and contractual ramifications obviously flow accordingly.
I. Historical Context and Overview
There is no unified body of ‘law' concerning surrogacy and third party A.R.T. It is an area in a constant state of flux, where traditional family building approaches are being buffeted by newly-available technological procedures and by the new perspectives of infertile couples to act upon them.
Obviously, artificial insemination is not of recent vintage; what has changed is the gender of the infertile party within the marriage. Statutes in place for decades in numerous states (and which mimic Georgia's lead in adopting O.C.G.A. § 10-7-21) envision an infertile husband who (along with his wife) chooses to utilize donated semen to impregnate his fertile wife or use this process to increase the chances of a husband (of marginally fertile or infertile sperm) impregnating his wife. Only recently have couples realized that a third party to the marriage (a female surrogate) may agree to become impregnated with the semen of the fertile husband and ultimately allow the infertile wife to treat the child to be born as her own offspring. Curiously, this has not always been the case. Two surrogacy arrangements were documented in the Old Testament. Sarah, wife of Abraham, was infertile, and enlisted her maid, Hagar, to bear Abraham's child. Genesis, Chapter 16. Isaac and his barren wife, Rachel, relied upon Rachel's servant, Bilbah, to bear Isaac's child. Genesis, Chapter 30.
As revealed in the Introduction, third party A.R.T. is anticipated in Georgia law only through a principal statute which governs use of donated sperm by an infertile couple (O.C.G.A. §19-7-21), although O.C.G.A. § 53-2-5 in Georgia's probate code emphasizes that such a child born of the consensual administration of artificial insemination of both husband and wife will render the child born legitimate under the intestacy laws.
As a result, little direction is provided the practitioner in third party A.R.T. and surrogacy issues. However, even in states where third party A.R.T. and surrogacy are much more established (such as California and Florida), applicable statutory and case law serve as a bare minimum. For example, only one state, by statute, requires the active involvement of psychologists or mental health counselors (in New Hampshire, prior to in vitro fertilization or embryo transfer, the recipient woman as well as her husband must receive counseling and must be evaluated as to their ability to give a child love, affection, and guidance, their ability to adjust and to assume the inherent risks of a surrogacy contract, and a home study must be conducted. N.H. RSA 168-B:18(i), (ii), (iii)). See also Section VIII of this tractate, the case of R.R.v. M.H., in which the Supreme Court of Massachusetts recently required counseling in AI (traditional) surrogacy). However, every reputable infertility clinic across the country and world requires the active participation of a psychologist/psychiatrist/mental health counselor.
II. The Third Party A.R.T. and Surrogacy Team
Third Party A.R.T. and surrogacy is a team effort, requiring the coordinated efforts of trained, skilled professionals, along with the infertile couple desiring surrogacy, the surrogate, and the surrogate's family. These professionals include:
A. Agencies and Surrogacy Locators
For those who can afford the option, use of agencies makes abundant good sense. Agencies are skilled in coordinating the third party A.R.T. and surrogacy process, from initial locating of surrogates, through the counseling of all involved following the birth of the child. Specifically, the agency is skilled in answering inquiries, mediating areas of potential conflict, addressing sensitive areas, projecting the course of events during the surrogacy, and in assisting the surrogate and the infertile couple in the separation and transition following the birth of the child.
The often considerable cost of using agencies prices third party A.R.T. and surrogacy beyond the reach of many infertile couples. These couples must then locate a surrogate, who many times is a family member or friend. If this is not a possibility, the infertile couple must seek an unknown third party to serve as the surrogate. There may be prohibitions against advertising for potential surrogates, and there may be distinctions under local law between those willing to serve as gestational surrogates versus those wanting to be artificially inseminated. States may require the use of an agency or the employment of an attorney.
Once a surrogate is located, the infertile couple must assemble the surrogacy team of professionals in order that they perform their essential tasks. Some couples are better equipped to coordinate this undertaking than others, both in terms of financial and transactional acumen, as well as the emotional strain from dealing with continued infertility.
Until recently, mankind's experience was that a pregnant woman was the mother of the child she was bearing. That is no longer true in the gestational and donor surrogacy options, and the normal presumptions concerning motherhood (and how the law recognizes it) are not necessarily correct. The same holds true for oocyte (egg) donation.
Under normal circumstances, many states presume that a man who is married to a pregnant woman, either at time of conception or time of delivery, is the father of the child. This presumption would wreak havoc if left to stand unrebutted in the third party A.R.T. and surrogacy context.
Georgia law presumes that a delivering mother's husband (either at the time of conception or at the time of delivery of the child) is the father of the child. O.C.G.A. §19-7-20(a). Mims v. The State, 43 Ga. App. 100, Boone v. Boone, 225 Ga. 610.
However, this presumption may be rebutted under O.C.G.A. § 19-7-20(b), where there is clear proof to the contrary. In such instance, the child would be considered "born out of wedlock" and "illegitimate" if the biological father is not the husband of the delivering female. Wilkins v. Department of Human Resources, 255 Ga. 230, 232, 233.
A father of a child sired out of wedlock may render the child legitimate by petitioning the superior court. If the court declares the child to be legitimate, the child may then inherit from the father in the same manner as if born in lawful wedlock, and upon notice to the mother, the court may further establish the duties of the father to support the child. O.C.G.A. § 19-7-22. A petition to establish the paternity of the child may also be brought by the mother of the child. O.C.G.A. § 19-7-43(a)(2).
In both gestational surrogacy and artificial insemination surrogacy, Georgia law would, without a dispositive court proceeding, consider the child to be born out of wedlock.
There is no indication that Georgia law would consider the delivering female anything other than the mother of the child. However, one can assert that with advances in medical technology, maternity hearings are also appropriate. To hold otherwise would violate basic tenets of equal protection, as women, unlike men, would be denied the opportunity to establish their genetic link to a child for no rational basis. See Soos v. Superior Court County of Maricopa, 897 P.2d 1356 (Ariz. App. Div. 1 1994), where Arizona's anti-surrogacy statute was declared unconstitutional for violating both the Arizona and United States equal protection clauses, as women were denied the opportunity to prove their genetic link to a child in the gestational surrogacy context, while that right was afforded men.
On the issue of Georgia birth certificates, if a mother is married either at the time of conception or at the time of birth, the name of her husband shall be entered on the birth certificate as the father of the child unless paternity has been determined otherwise by a court having jurisdiction, in which case the name of the father as determined by the court shall be entered. O.C.G.A. § 31-10-9(1).
If the mother is not married to the father at either the time of conception or at the time of birth, the name of the putative father shall not be entered on the certificate of birth without the written consent of the mother and the person to be named as father. O.C.G.A. § 31-10-9(2).
In any case in which paternity of the child is determined by a court of competent jurisdiction, the name of the father and the surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court. O.C.G.A. § 31-10-9(3).
If the father is not named on the certificate of birth, no other information about the father shall be entered on the certificate. O.C.G.A. § 31-10-9(4).
Hence, it is quite appropriate for a court to determine paternity in the surrogacy context in order that the birth certificate issues appropriately. In artificial insemination (traditional) surrogacy, an initial birth certificate may issue showing genetic father and surrogate as parents. After a step-parent adoption proceeding, a substitute birth certificate issues, showing the infertile couple as parents of the child.
Birth certificates are the holy grail of third party ART and surrogacy practice. While contract drafting, verifying insurance coverage and conducting maternity/paternity/step parent adoptions are essential steps, in the long run the birth certificate is the document which shall be utilized pervasively by the intended parents during the child's lifetime.
Are all infertile couples candidates for surrogacy in its different manifestations? Once medical practitioners have addressed the physiological issues, what are the psychiatric and psychological issues?
Who is an appropriate candidate to be a surrogate? Does her husband or boyfriend concur? How is the pregnancy coordinated between the infertile couple, the surrogate, and the surrogate's family, particularly if they are separated by considerable distance? How does the infertile couple bond with the child to be born? How is the surrogate assisted in the emotionally difficult scenario of parting with the child upon its birth?
What will the child be told concerning the circumstances of its gestation and birth? What interest does the surrogate, as well as the surrogate's family, have in monitoring the development of the child after its birth, considering the compassionate impulses which lead most surrogates to agree to bear and deliver someone else=s child?
How suitable are the intended parents? See Soos v. Superior Court County of Maricopa, supra, where the gestational surrogate was pregnant with triplets, and the genetic and intended mother filed for divorce from the genetic and intended father.
Obviously, these mental health practitioners are essential to the surrogacy process. Only the States of New Hampshire and Massachusetts require their involvement in surrogacy and third party A.R.T. arrangements. (See Section I of these materials). Yet all reputable infertility clinics insist that mental health practitioners be actively involved in screening.
D. Medical Doctors and Technicians
These are the individuals who make third party A.R.T. and surrogacy physically possible, in addressing the physiological, medical, and other reasons for infertility. They must conduct thorough profiles and examinations of the infertile couple, as well as the surrogate. They must screen for genetic as well as infectious disease. They must extract ova (eggs), fertilize them in vitro (“test tube”), and surgically implant the embryos into the uterus of the surrogate. The options of reproductive endocrinologists, embryologists, urologists, and OB/Gyns are as varied as the sources of infertility, and there are numerous treatments available, and constantly evolving.
In artificial insemination surrogacy, the doctors must again screen for genetic, as well as infectious disease. They then use the husband's donated sperm to artificially inseminate the surrogate.
With traditional artificial insemination (where the wife is capable of conceiving and bearing a child, yet the husband is the infertile member of the couple), the physician, either alone or in concert with a reputable sperm bank, screens the donated sperm for genetic, as well as infectious disease, and artificially inseminates the wife.
In egg donations (where the wife's eggs are not suitable for conception, but where eggs are donated by a third party, fertilized in vitro, and the embryo is then placed in the wife's uterus in order to carry the child to term), the physicians screen the egg donor for genetic and infectious disease, extract the ova (eggs) from the egg donor, fertilize in vitro the eggs of the egg donor with the sperm of husband, and place the embryos into the wife=s uterus so that the wife carries the child to term. Embryo donation also requires uterine insertion into the host woman.
Obstetricians and gynecologists are essential as in any pregnancy.
E. Hospital Staff and Administration
An informed and caring hospital staff is essential for the delivery of a child born through third party A.R.T. and surrogacy, from accommodation of the infertile couple in the birthing process itself, to the establishment of procedures as to who will authorize medical treatment on behalf of the child, how birth certificates shall issue, and how the child and surrogate shall be discharged. Sensitivity to the novelty of the birthing arrangement, along with honoring the privacy expectations of those involved, are paramount.
In the event the hospital staff and administration are not informed or sensitive on third party A.R.T. and surrogacy issues, the result is often robbing the infertile couple and the surrogate of the pleasure and anticipation of the birth of the child.
Furthermore, hospitals are involved in supplying information to the state concerning the issuance of birth certificates, and will be seeking clarification of the individuals who will authorize medical treatment of the child upon its birth.
A related point is responsibility for medical costs and insurance coverage. In the usual pregnancy, there is a seamless web of insurance coverage of a woman's pregnancy, the birth of the child, and pediatric coverage of the child. However, in the third party ART and surrogacy context, the baton of insurance coverage must be passed upon birth of the child, as the Author has only encountered one situation where the surrogate and the intended parents had the same insurance carrier.
Another issue is apportionment of costs upon delivery of the child. There has not previously been a necessity of apportioning costs upon a child's delivery, but in surrogacy arrangements conceptually the hospital should be billing two different entities--one insurance company which covers the Surrogate, through the birth of the child, and a separate company whose obligation begins upon delivery of a viable and living child. In this vein, attached to these materials is a March 17, 1998 letter from Catherine Butler, counsel for Northside Hospital, which delineates how Northside Hospital has addressed what will be an increasingly occurring scenario in the third party ART and surrogacy context.
III. Sperm, Eggs, and Fertilization
The securing of sperm, eggs, and fertilization are also subject to legal oversight.
A. Securing Sperm
Where the husband in the infertile couple shall provide the sperm, less legal oversight is required. Sperm donation is generally much more “low tech” than egg retrieval.
Where sperm shall be donated from other sources (such as a sperm bank), bare legal requirements should be considered an absolute floor. The sperm should obviously be screened for genetic components as well as the risk of sexually-transmitted disease. The warranties and disclaimers of the sperm bank should be thoroughly reviewed.
Many reputable sperm banks or infertility practitioners now require the freezing of donated sperm in accord with American Society of Reproductive Medicine (ASRM) protocol. In this manner, the sperm donor may be examined for infectious disease at the time of donation, and then reexamined several months later, prior to using the “quarantined” sperm. In this manner, any sort of infectious incubation period can be taken into consideration before the sperm is used.
The risk of HIV/AIDS transmission through third party A.R.T. is quite minimal, although the effect, if contracted, would obviously be quite devastating. As such, if fresh sperm is utilized it should undergo sperm washing techniques, as data suggests that ICSI [Intra Cytoplasmic Sperm Injection], where a single sperm is injected into an egg to create an embryo] is preferable to general donor insemination with associated cellular debris, which apparently serves as an infectious conduit. However, cryopreservation and prior and later screening of the donor seem to be the safest techniques.
The law may distinguish between donated sperm of a known source, versus that anonymously donated. Particular care should be taken to assure that sperm donated from a known source does not subject the provider to responsibility for any child to be conceived, nor does it confer any parental rights in the donor.
Generally, compensation of sperm donors is not prohibited.
The American Society of Reproductive Medicine advocates the use of quarantined sperm. There is, however, also available the PCR method of disease detection which allows more immediate analysis of donated semen for the presence of HIV/AIDS viruses. This is a much more involved technique which involves DNA analysis.
It is highly desirable to inventory genetic data upon obtaining and use of any donated gamete (sperm, egg, or embryo). Medical history of the donor and the donor's forebear's will be helpful to the child's doctors, throughout the child's life.
Securing Donor Eggs (Oocytes) and Donor Embryos
Obtaining eggs (oocytes) is obviously a much more elaborate procedure than sperm donation.
Treatment with pharmaceuticals accompanies egg donation (the primary purpose of which is to increase from one to many the yield of eggs), and the actual extraction of the eggs from the donor is an invasive surgical procedure. Licensed medical practitioners are required, and the course of treatment should be accompanied by compliance with informed consent.
As egg donation is of much more recent vintage, many states have not specifically promulgated laws concerning it. However, as a matter of equal protection, it is justifiable to treat the donated female component (eggs/oocytes) in the same manner as the state would treat the donated male component (sperm). However, it is less likely that eggs would be from a truly anonymous donor and, hence, the same considerations might apply as for a known sperm donor.
As to compensation, if a state allows compensation to sperm donors, it would seem unlikely that compensation for donated eggs would be proscribed, although this matter has yet to be legally tested in Georgia.
Egg screening and quarantining is of much newer vintage than sperm quarantining, due to the fragility of eggs with present egg preservation techniques. Prior to the advent of egg freezing (and generally still), eggs were used “fresh” and hence the possibility of egg quarantining was not available. The possibility of egg quarantining (for disease detection) is one of many benefits available from the new egg freezing techniques.
The previous procedures (prior to the advent of egg freezing) obviously involved only fresh eggs and hence quarantining was not available. Dr. Sam Thatcher of the Center for Applied Reproductive Science in Johnson City, Tennessee allows that the best practice in that scenario is to test blood of the donor for HIV/AIDS and to be conscientious in selection to minimize the prospect that these individuals have engaged in high risk behavior for HIV/AIDS transmission.
Embryos may also be donated. In this situation, the genetic “package” is obviously complete in that both sperm and egg are fertilized in vitro. Prior to recent breakthroughs with egg freezing, the only real method to preserve eggs was in the embryonic form. In that situation, the embryos could be cryopreserved and both the sperm and egg donors could be later tested for HIV/AIDS to address the latency period of detection.
The PCR method for more immediate HIV/AIDS analysis is apparently available for donated eggs. However, other communicable diseases must be considered, along with their method of detection.
However, if fertilized embryos were donated, then compensation should be much more closely scrutinized due to some states' proscriptions against “baby selling” in the adoption context. Obviously, there is a distinction between a fertilized embryo and a born child, yet it must be remembered that the laws of many states have not been revised to reflect present medical technology. As terms such as “parent” are not precisely defined in many statutes, it could be argued that such compensation results in “baby selling,” an act which in many states is a felony.
C. Securing Fertilization
Fertilization carries with it a panoply of legal considerations.
1. Who May Fertilize
Numerous states permit only licensed medical practitioners to artificially inseminate, and numerous states carry felony penalties for unlicenced or unqualified artificial insemination. Many physicians are reluctant to inseminate, which may indicate why some infertile couples have utilized the self-help, “low tech” remedy of turkey baster artificial insemination. There are at present 99 reasons which the author has formulated as to why this is an horrendous option, in addition to abetting a carnival atmosphere upon appearance before a court. However, infertile couples are frequently at their wits' end and in desperation have exhibited less than exemplary discretion.
Obviously, if the fertilization is in vitro, then it is presumed only licensed medical practitioners would be performing these tasks. However, this assumption may be erroneous.
Only licensed physicians and surgeons may administer or perform artificial insemination in the state of Georgia. Anyone else who attempts or performs artificial insemination shall be guilty of a felony, punishable by one to five years imprisonment. O.C.G.A. §43-34-42(a).
A licensed physician or surgeon may not delegate the administration or performance of artificial insemination to other non-physicians. Opinion of the Attorney General 82-87.
If an inseminating physician secures the written authorization, signed by both the husband and wife to whom he administers artificial insemination, the physician shall have no civil liability to the husband, wife, or child to be born, except for that physician's negligence. O.C.G.A. § 43-34-42(b).
Often, eggs which are fertilized with sperm (hence, embryos) require storage. This may be because a surrogate has not been located to carry the embryo, or initial implantation has not resulted in pregnancy and additional implantation cycles must be undertaken. Furthermore, the ovary stimulation induced by the medical course of treatment may result in a number of eggs being immediately produced, which can be preserved through cryopreservation for future use.
It is essential to reach agreement as to how any unused embryos will be treated. There is obviously a continuing cost to the infertility clinic for preserving the embryos, and these fees must be agreed upon. Unused embryos could be potentially donated to others, destroyed, or utilized for medical research purposes. These issues need to be clearly delineated in the agreement.
Ultimately, the in vitro-fertilized embryo will be implanted in the host (surrogate or intended mother). This is an invasive medical procedure, and prudent fertility clinics/medical practitioners will (even if the law in the particular state is silent on this matter) require a contract between the infertile couple and the surrogate prior to implanting of the embryo(s).
The implanting procedure itself is subject to informed consent requirements and constitutes the practice of medicine, which should be performed only by a licensed medical practitioner. Good practice would require proof of disclosure of possible genetic disease or condition, along with appropriate screening.
IV. Selection of Surrogate
Physiological, psychiatric, psychological, and emotional considerations are paramount in selecting a surrogate.
The medical practitioners must be convinced that the surrogate is capable of carrying the child, and the psychiatric/ psychological/counseling professionals must be convinced that the surrogate is appropriately motivated and has the qualities essential to becoming a surrogate and delivering a healthy baby.
Thereafter, one must consider legal ramifications. These include:
A. How to Locate Surrogate
Does the law of the particular state proscribe or prohibit surrogacy, and hence, should a surrogate be sought who is a resident of a particular state, or should the birth be arranged in a particular state? The infertile couple must consult with legal counsel on these issues.
How does an infertile couple “link up” with potential surrogates? Do the laws of a particular state require an agency or a lawyer to make these contacts or inquiries (either privately or through advertising)? Where the surrogate will have a genetic link to the child to be born (such as through artificial insemination surrogacy, rather than gestational surrogacy), there may ultimately be a step-parent adoption, where the genetic mother (the surrogate) is replaced as legal parent with the wife of the sperm donor. In these instances, the adoption laws of the particular state may well have to be consulted as they relate to locating pregnant “mothers” willing to place their child for adoption.
Georgia's adoption code proscribes unauthorized contacts in attempts to secure children for adoption, and it furthermore proscribes amounts to be paid as "inducements to parents to part with their children." These provisions certainly apply in the adoption context, and they are broad enough to arguably apply in the surrogacy context.
The code provision, found at O.C.G.A. § 19-8-24, is as follows:
"(a) It shall be unlawful for any person, organization, corporation, hospital, or association of any kind whatsoever which has not been established as a child-placing agency by the department to:
(1) Advertise, whether in a periodical, by television, by radio, or by any other public medium or by any private means, including letters, circulars, handbills, and oral statements, that the person, organization, corporation, hospital, or association will adopt children or will arrange for or cause children to be adopted or placed for adoption; or
(2) Directly or indirectly hold out inducements to parents to part with their children.
As used in this subsection, "inducements" shall include any financial assistance, either direct or indirect, from whatever source, except payment or reimbursement of the medical expenses directly related to the mother's pregnancy and hospitalization for the birth of the child and medical care for the child." O.C.G.A. § 19-8-24(a)(1) and (2).
(b) Any person who violates subsection (a) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine not to exceed $10,000.00 or imprisonment for not more than ten years, or both, in the discretion of the court.
(c) (1) Paragraph (1) of subsection (a) of this Code section shall not apply to communication by private means, including only written letters or oral statements, by an individual seeking to:
(A) Adopt a child or children; or
(B) Place that individual's child or children for adoption,
whether the communication occurs before or after the birth of such child or children.
(2) Paragraph (1) of subsection (a) of this Code section shall not apply to any communication described in paragraph (1) of this subsection which contains any attorney's name, address, telephone number, or any combination of such information and which requests any attorney named in such communication to be contacted to facilitate the carrying out of the purpose, as described in subsections (A) or (B) of paragraph (1) of this subsection, of the individual making such personal communication."
This statute has been upheld in a recent constitutional challenge in a straight adoption (non-surrogacy context), where a used automobile was offered to a mother in exchange for physical custody and control of her child. Douglas v. State, 263 Ga. 748. While the used car/child swap may seem bizarre (other than sewing up "Mother of the Year" accolade for this enterprising individual) and inapplicable to third party A.R.T. and surrogacy. The proscriptions arguably serve as fetters.
Under the Georgia Adoption Code, the male “parent” would be the “legal father” who:
A) has legally adopted a child;
B) was married to the biological mother of that child at the time the child was conceived or was born, unless such paternity was disproved by a final order;
C) married the legal mother of the child after the child was born and recognized the child as his own, unless such paternity was disproved by a final order;
D) has been determined to be the father by a final paternity order; or
E) has legitimated the child by final order, and who has not surrendered or had terminated his rights to the child. C.G.A. §19-8-1(6).
Furthermore, “biological father means the father who impregnated the biological mother resulting in the birth of the child.” O.C.G.A. §19-8-1(1).
The female “parent” would be the “legal mother” who is “the biological or adoptive mother of the child and who has not surrendered or had terminated her rights to the child.” O.C.G.A. §19-8-1(7).
Hence, for those keeping score, in the gestational surrogacy context, there is no way of determining who the female parent is, in that “biological” has not been defined. Query: Does “biological” entail providing the genetic material for the child, or carrying the child to term? In gestational surrogacy, there would initially be two legal mothers, unless a court lent effect to the surrogate's contractual surrender of her potential parental rights. “Biological father” is defined as the male who impregnated the biological mother, and the statute's definitions do not delineate which of the two women that would be.
In artificial insemination (traditional) surrogacy, the male parent is known, yet the female parent (“legal mother”) can be the “female who is the biological or adoptive mother of the child and has not surrendered or had terminated her rights to the child.” To wax pedestrian, we are faced with a chicken and egg scenario. A legal practitioner can argue, quite plausibly, that these statutes should be strictly construed in the criminal context, and hence they are inapplicable in the third party A.R.T. and surrogacy context.
However, a practitioner cannot lightly discount the prospect that a zealous prosecutor would charge an individual or individuals involved in a surrogacy context with a felony. This inquiry is necessary in that there are expenses and complications in pregnancy which extend beyond the mere payment of medical expenses. Surrogates are suffering a temporary partial disability during their pregnancy, as they must obviously restrict the work and tasks they perform, both in their personal and home life, along with their actual employment. The surrogate and her family will have to shift responsibilities and chores and will actually suffer increased expenses such as maternity clothes, increased dining out, along with maid services and third party vendor and supplier costs for tasks which the surrogate performed prior to her becoming pregnant.
In the compassionate surrogate context, few infertile couples anticipate a surrogate will actually suffer the necessary expenses of a pregnancy. Yet the Attorney General has ruled that payment of $300 in lost wages to an expectant mother of a child to be placed for adoption would violate the statute. U86-21.
The statute may also bar general advertisement to locate artificial insemination surrogates.
However, a countervailing notion for authorizing pregnancy costs for the actual genetic parents in a surrogacy lies in their prenatal and post birth support obligations to the child.
In Georgia, both biological parents of an "illegitimate child" (or a "child born out of wedlock," as defined by the case law) have a support obligation to the child. Failure to support a child could support a criminal abandonment action, even if another individual is caring for the child. In re: M.A.F., 254 Ga. 748, 750.
It is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child until that child reaches the age of majority, except to the extent that the duty of one parent is otherwise further defined by court order. O.C.G.A. § 19-7-24.
Additionally, the father of a child born "out of wedlock" has a prenatal support obligation to the child to be born. Coxwell v. Matthews, 263 Ga. 444.
As a consequence, the genetic parents in a surrogacy context have support obligations to the child, both at birth and prenatally. Paradoxically, if the surrogate is married and if no corrective court proceedings are undertaken, the law presumes surrogate's husband is the father and bound by the support obligation to the child. The same holds true for the surrogate.
Regardless of whether the surrogate is married or not, under O.C.G.A. § 19-7-25, only the "mother" of the child "born out of wedlock" is entitled to the child's custody, unless the father legitimates the child as provided in O.C.G.A. § 19-7-22. Otherwise, the mother (presumptively the delivering female) may exercise all parental power over the child.
In such instances, the child would remain under the control of its "mother" (presumed to be the delivering female) until the age of majority. In re: M.A.F., 254 Ga. 748, 751.
The father of the child (born "out of wedlock") "gains from his biological connection with the child an opportunity interest to develop a relationship with this child which is constitutionally protected . . . It is an interest which (the biological father not married to the delivering female) has a right to pursue through his commitment to becoming a father in a true relational sense as well as a biological sense. Absent abandonment of his interest, the state may not deny a biological father a reasonable opportunity to establish a relationship with his child . . . If timely and diligently pursued, and not abandoned, this opportunity interest will lead (a biological father not married to delivering female) to enjoy the benefits of custody and entitle him to equal treatment under law accorded other parents." In re: Baby Girl Eason, 257 Ga. 292.
Therefore, the surrogate would have the exclusive obligation and control over the child, unless the genetic and biological father undertook (through court action) to establish his rights to the child.
As established earlier, the Georgia unlawful inducement statute combines the concepts of locating a pregnant woman who is prepared to part with her child, along with the types of financial inducements which may be provided to the pregnant woman.
On the practical issue of notification and surrogate location, while the Atlanta Journal & Constitution once accepted classified advertisements seeking to locate surrogates, the paper now insists that the advertisements be submitted by an attorney. The net effect is to considerably reduce (to almost zero) the number of respondents to the advertisements. Few potential surrogates gratuitously communicate with lawyers.
One can certainly argue that the unlawful inducement statute does not contemplate surrogacy, yet that argument will get you nowhere with the two major Atlanta newspapers.
Alternatively, advertisements run in smaller town newspapers outside of the Atlanta area have been successful as they have not required reader response to attorneys. The greatest success has been achieved through Internet matching at www.surrogacy.com., or through use of agencies.
B. Married Surrogates
Traditionally, childbirth occurred to married couples, and hence, legitimacy of the child was generally presumed where the parents were married at either at the time of conception or time of birth.
However, this was not always the case, and there are often provisions (generally requiring some form of court supervision such as filing of affidavits or conducting of judicial hearings) to determine paternity in the event the father of the child is not the husband of the mother.
As the husband of the surrogate is a necessary party to these procedures (as many states presume him to be the genetic father of the child), the surrogate's husband must be in full accord and endorse the surrogacy. Otherwise, a contested legal proceeding could well ensue.
The same considerations would apply to an unmarried surrogate with a semi-permanent boyfriend or “significant other.” Some states might allow such individuals to acquire the rights of a common law husband.
In any event, the surrogate's husband or “significant other” would have to agree to sexual abstention during the periods of fertilization or embryo transfer. These men are also necessarily subject to testing for infectious disease to the extent these diseases could impact the pregnancy or delivery of the child.
C. Compassionate Versus Compensated Surrogate
The availability of compensation to the surrogate, along with its extent, must be seriously considered. The law in this area developed in the adoption context, where “baby-selling” by pregnant women is often proscribed. In many states it is a felony, punishable by significant fines and multiple years in prison.
The matter is highly regulated in the adoption context, generally requiring disclosures of amounts paid (and their purpose) in formal adoption proceedings, and the allowable amounts often restricted to reimbursement of medical, legal, and possibly living costs. Adoption agencies often have greater leeway in allowed expenses to be reimbursed to the mother. Compensation may not be allowed for lost wages due to illness during the pregnancy. The particular state's laws must be consulted on all surrogate compensation issues.
Where surrogacy is specifically envisioned in a particular state, the statute should be scrutinized as to allowable elements of compensation or reimbursement. Where it is not, the infertile couple (and their legal counsel), along with the surrogate (and her legal counsel) must weigh the relative risks in determining whether these laws would apply in the surrogacy context. They most probably do in artificial insemination surrogacies, where a step-parent adoption would follow the birth of the child (as the infertile wife replaces the surrogate genetic mother). Hence, compensation is probably limited.
In the gestational surrogacy context, compensation might be more liberal, based on the following notions:
The fact that the pregnancy was deliberately arranged, consciously undertaken, and presumably, the topic of a signed contract between the parties, where all of these matters were agreed upon in advance (vis a vis the generally “unplanned” pregnancies in the adoption context);
The fact that the pregnant surrogate has no genetic ties to a child she is carrying; and
The support obligations which a father has to a child in an “out of wedlock” situation. In most states, if the father is not married to the surrogate, he nonetheless has a support obligation to the child when born, often through the age of majority. In some states, the father also has a prenatal support obligation to the child, as the law recognizes that it is highly desirable to arrange for the providing of adequate prenatal care to the yet born child.
See IV(A) of these materials for Georgia's perspective.
D. Where Child is to be Born
Among obvious issues is the desire of the infertile couple to monitor the pregnancy (and whether that is possible or practical in a distant state), and another element involves the state of the child's birth and its jurisdiction to issue birth certificates.
The laws of that state would, therefore, apply concerning which individuals are listed as father or mother on the birth certificate, as well as what procedures must be undertaken to overcome usual presumptions such as the listing of the surrogate's husband as father of the child. While some states in the past allowed an unmarried woman delivering the child to name the child's father on the birth certificate, that is often not an available option currently.
An additional issue is the naming of the hospital where it is anticipated that the child will be born. With the advent of HMOs and other restrictions under health and medical insurance policies, often a particular hospital must be designated. Insurance policies in general should be scrutinized to assure that there are not exclusions for third party assisted reproduction or surrogacy (as is evident in some of the more recently revised policies), as well as to assure that there is a seamless web of coverage.
In the typical pregnancy, the same policy will cover the pregnancy itself, birth, and then roll into pediatric coverage of the child. In the typical surrogacy context, however, there is almost universally a point where coverage under one policy ends, and another begins. The surrogate's coverage entails the pregnancy, the birth of the child, and generally her recovery from the birth and any resulting complications. Pediatric coverage of the child is generally through the policy of the intended parents, and most often is through a different insurance carrier. It is essential that there be no gap in coverage between the two policies.
V. Necessity of A Contract
Some states require a contract among all parties to the surrogacy birthing arrangement, and there are often requirements that the contract address certain issues. However, good practice requires that a host of additional issues be addressed in a contract in order to forge a true “meeting of the minds” on what is undoubtedly one of the most personal and complicated of concerted human actions.
Where contracts are not required, they are still absolutely essential. Many jurisdictions permit private agreement (contracts) so long as the actions contemplated do not run afoul of the public policy of the state. Few jurisdictions have fully tackled all of the issues manifest in a surrogacy arrangement, and have yet to fully determine the public policy issues involved. Hence, the opportunity is ripe for private agreement, although there is no certainty whatsoever, if challenged in court, that the state would embrace all components of a surrogacy arrangement.
Georgia's Statute of Frauds, found at O.C.G.A. § 13-5-30, holds in pertinent part “to make the following obligations binding on the promissor, the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him...(2) a promised answer for the debt...of another...”
An essential element of a surrogacy contract is the commitment to pay certain debts of the surrogate which shall be incurred under the surrogacy arrangement. These obviously include medical expenses at the very least.
In Georgia, a contract to do an immoral or illegal thing is void. If the contract is severable, however, the part of the contract which is legal will not be invalidated by the part of the contract which is illegal. O.C.G.A. § 13-8-1.
A contract which is against the policy of the law can not be enforced. O.C.G.A. § 13-8-2.
These provisions may apply to the surrogacy context, as surrogacy contracts for gestational surrogacy, artificial insemination surrogacy, and egg donation have not been, to the knowledge of the author, specifically upheld or prohibited in reported cases of the Georgia appellate courts.
The legislature has not, to the author's knowledge, declared public policy in this area, and it is certainly unclear how the appellate courts would react to this area of practice.
The author has represented numerous couples in drafting of gestational surrogacy contracts, artificial insemination contracts, and embryo and egg donation contracts, and in conducting of judicial hearings which result in declaration of paternity, maternity, parental rights, authorization to consent to medical treatment, and the appropriate issuance of birth certificates. However, none of the author's cases, nor surrogacies involving other attorneys have been challenged before a trial or appellate court. Therefore, this remains an unsettled area of the law in Georgia.
Most infertility clinics require a contract between the infertile couple and the surrogate, if for no other reason than to cover its flank in the event a dispute develops between the infertile couple and the surrogate, as to biological parenthood, parental rights, and custodial aspects of the child to be born.
However, for insurance coverage reasons, and on a more basic level of truly formulating a “meeting of the minds,” there is no articulable basis for not utilizing a written agreement. By insisting upon drafting and revision of an agreement, the involved parties can develop an appreciation for the manifest complexity of such an undertaking. Participants often develop a moral commitment to abide by the terms of agreements of unknown legal enforceabilty.
The following is by no means an exhaustive listing, but can serve as a “checklist” of issues which the infertile couple and the surrogate should explore with their retained legal counsel in order to assure compliance with local law, or to privately define their contractual obligations and responsibilities.
A. Parties To The Agreement
These include the infertile couple, surrogate, and surrogate's husband (or “significant other” if there is such a relationship). Identified individuals or groups, while not absolutely necessary to the contract itself, should include designation of the infertility physician, the obstetrician, the psychiatrist/psychologist/counselor, the hospital where it is anticipated the child shall be delivered, the agency if one is being used, and governmental authorities with whom coordination is required.
1. Infertile Couple
They will be forging one of the most important agreements of their lives, fully entrusting their child (either through gestational surrogacy or artificial insemination) to another person, who will carry, nurture, and surrender the child upon birth to the infertile couple.
The surrogate is surrendering aspects of her life which go to the root of privacy expectations. She shall agree to periods of sexual abstinence, to have others supervise her pregnancy, to abide by rigorous prenatal care, and she shall subject herself to attendant risk through the course of medical treatment. She shall also subject herself to risks customarily found in pregnancy and childbirth.
A contract is essential even if the surrogate is related to the infertile couple. While it is somewhat awkward to deal at arm's length with family members, disagreements unfortunately arise within the extended family context. Also, a contract is essential in order to forge a “meeting of the minds,” both in the legal as well as the psychiatric/psychological/ counseling contexts.
3. Surrogate's Husband/”Significant Other”
Most laws presume that a man married to a pregnant woman either at the time of the conception or at the time of the birth of the child is the father of the child. This makes abundant good sense in the vast majority of instances, but obviously runs counter to reality as well as expectations in the surrogacy arrangement. Also, the surrogate's husband is involved to a very large, though peripheral degree, inasmuch as his wife is pregnant. He must agree to sexual abstention at certain times, and is subject to medical scrutiny for infectious disease. His wife shall be undergoing risk, and it is often necessary to scrutinize his group medical plan as to its coverage of the surrogacy.
4. Infertility Physician
The infertility physician or clinic must be designated under the agreement, as this is a matter of accord between the infertile couple and the surrogate for medical care preference reasons, along with the fact that the infertile couple shall agree to bear the costs of the infertility physician/clinic in the highly likely event that there is no medical coverage for the procedure. Astute infertility physicians/ clinics demand a contract between the infertile couple and the surrogate, even if one is not required by law. As a dispute might arise between the infertile couple and the surrogate, the infertility physician/clinic would be wise to insist on acknowledgments of maternity and paternity in the agreement, in advance of any medical procedures.
Other issues of interest to the infertility physician/clinic, which may be addressed in this agreement or in collateral agreements, are issues concerning cryopreservation of eggs or embryos, as well as informed consent to the medical procedures.
5. Surrogate's Obstetrician
While the obstetrician primarily renders medical services to the surrogate, the performance of these duties shall ultimately also inure to the benefit of the infertile couple. The infertile couple shall have full access to the medical records of the surrogate, and can be expected to meet periodically with the obstetrician during pregnancy checkups. Furthermore, the infertile couple may well bear the costs of the obstetrician's services in the event they are not covered by an existing health policy. Generally, HMOs restrict access to particular obstetricians.
The costs of these services, rendered to both the infertile couple as well as the surrogate, will likely be borne by the infertile couple. The psychiatrist/ psychologist/counselor occupies a pivotal role in screening the surrogate candidate; helping the parties to reach accord on the surrogacy issues during pregnancy; formulating the process of the surrogate surrendering the child to the infertile couple; abetting the surrogate's family (often including her own young children) in coping with the surrogacy; abetting the surrogate in bonding with the infertile couple, rather than the child she carries; and counseling the surrogate on any lingering concerns following surrender of the child to the infertile couple, including post partum depression.
7. Birthing Hospital
The hospital where it is anticipated the child shall be delivered should be designated, as the hospital must be sensitive to third party A.R.T. and surrogacy issues, and must meet insurance/HMO designations and restrictions. These third party and A.R.T. issues include accommodating the infertile couple in the birthing process, assuring privacy from those not intimately or necessarily involved in the procedures, as well as realizing who to consult on medical authorization issues on behalf of the child.
In Georgia, in the absence or unavailability of a living spouse, any parent is authorized and empowered to consent, either orally or otherwise, to any surgical or medical treatment or procedures not prohibited by law, which may be suggested, recommended, prescribed, or directed by a duly licensed physician, for and on behalf of the parent's minor child. O.C.G.A. § 31-9-2(a)(2).
Parents are liable for the medical expenses of their minor children. Georgia Farm Bureau Mutual Insurance Company v. Calhoun, 127 Ga. App. 213, Southern Railway Company v. Neely, 101 Ga. App. 488.
The hospital and delivering physicians generally provide birth certificate information to the appropriate governmental authorities and, hence, need to “be in the loop” on the surrogacy arrangement.
8. Governmental Authorities
The government has an interest in assuring that both a mother and father are legally responsible for the upbringing of a child, along with appropriately designating the individuals who will declared to be the father and mother of the child. The government is directly involved in the issuance of birth certificates and, hence, needs to be involved in the procedures where these decisions are made. An overriding issue is which state's authority is involved, which often hinges upon where the child shall be born.
B. Preimplantation/Preinsemination Testing
Numerous procedures must occur prior to impregnating the surrogate. They include the following:
1. Physiological Testing
The surrogate must be fully evaluated by the infertility physician/clinic to assure that she is an appropriate candidate to serve as a surrogate. The surrogate=s medical history must be fully disclosed, and she must be examined by the infertility physician/clinic. The test results shall be discloseable to the infertile couple. Almost universally, the physician insists on the surrogate's having successfully delivered healthy and viable children, as otherwise a risk manifests that the surrogate could also suffer from infertility, pregnancy, or delivery problems.
2. Psychiatric/Psychological Evaluation
The surrogate, as well as her personal history, must be fully screened by the psychiatrist/psychologist/counselor in order to assure that she is an appropriate candidate for surrogacy based on these criteria. She should have the support of her own family for the anticipated rigors of the pregnancy. The evaluation shall be released to the infertile couple and the infertility physician/clinic.
The infertile couple must be evaluated to assure they are appropriate candidates to be parents. The efforts they undertake in arranging third party reproductive family building options generally indicates that they are appropriately motivated. However, there are rare situations where this notion is unfounded. In one case, a gestational surrogate was pregnant with triplets when the intended mother filed for divorce from the intended father (Soos v. Maricopa County, supra). In another case, an unmarried father implemented a surrogacy arrangement, and within several weeks of the child's birth he had abused the child to the point of killing it (Huddleston v. ICA, Inc., 23 FLR 1387 (Pa. Sup. Ct.) (1997)).
As to more typical concerns that the surrogate will not surrender the child, one need look no farther than the Mary Beth Whitehead fiasco. In another case in Georgia, a sister in her early twenties agreed to serve as an artificial insemination surrogate for her sister, yet she was childless herself, and elected to keep the child herself upon becoming married during the course of the pregnancy. Elsewhere, a surrogate elected to keep the child in an attempt to salvage a failing marriage.
These are rare occurrences, yet are ones which catch the public's attention and have erroneously become perceived as being the norm. Adequate psychological screening would have prevented these horror stories. In fact, in the highly celebrated Mary Beth Whitehead case, the psychological profile indicated that Mary Beth Whitehead was not a suitable candidate for surrogacy, yet the infertile couple nonetheless proceeded with the surrogacy arrangement, to disastrous and highly publicized results.
The infertile couple, surrogate, and surrogate's husband (or “significant other”) must be evaluated for genetic components and/or for the risk of sexually transmitted disease. It is also desirable, in dealing with a traditional (artificial insemination) surrogacy, to receive a substantial medical history from the surrogate and her relatives, in order that the treating physicians of the child to be born have as much information as possible in providing care to the future child.
C. Implantation/Artificial Insemination
These procedures are obviously to be performed by a licensed medical professional, i.e., the infertility physician/clinic. Procedures include:
1. Agreement to Adhere to the Instructions of the Infertility Physician/Clinic
Rigid adherence to the directives of the infertility physician/clinic is essential, in order to assure that the reproductive cycles of both the infertile wife and the surrogate are concurrent (if applicable) and timing is also a significant consideration in artificial insemination. Often an extensive, expensive, and uncomfortable regimen of pharmaceuticals is employed to encourage parallel cycling of the involved women (although this is not necessary if the embryos have previously been cryopreserved). An interesting and beneficial phenomenon, however, is the prospect of sympathetic menstruation (occasionally dubbed “sorority house syndrome” among certain bons vivants), which sometimes occurs with women in close and extended proximity of each other, which can alleviate the need for this particular course of treatment.
2. Course of Treatment
Extensive pharmaceutical treatments are often required in the gestational surrogacy option and egg extraction, and subsequent implantation of embryos is an invasive procedure as well. Artificial insemination is obviously invasive.
The surrogate must agree to the medical course of treatment and to abide by the drug and pharmaceutical protocol as prescribed by the infertility physician/clinic and obstetrician. At this juncture, husbands or boyfriends are often pressed into service in administering the quotidian injections to the females' backsides. There is a surfeit of goodwill at this “harpooning stage,” which is enhanced by the hormone treatments which render customary menstrual periods pale comparisons. Experienced counsel are wisely scarce at this stage.
While informed consent may be separately handled by the infertility physician/clinic, good practice would also dictate that the infertile couple and surrogate agree directly on the procedures to be followed, as the infertile couple is encouraging these elective procedures by the surrogate. In the usual “informed consent” scenario, an individual undertakes a course of treatment with a physician solely for their own health and benefit, rather than for the ultimate benefit of the infertile couple as is true in third party A.R.T. and surrogacy arrangements.
3. Amount of Time Surrogate Shall Be Available for Implantation/Insemination Procedures
Often, the surrogate does not become pregnant during the first cycle, and it is unrealistic to expect that the surrogate (or the infertile couple) would wish to pursue this course of treatment into the indefinite future. A set period of time must be decided upon (nothing prevents the parties from agreeing to a later extension). Each procedure is expensive, uncomfortable, and several failed attempts can exacerbate emotional and physical states which are already quite tenuous.
4. Decisions to Terminate Prior to Pregnancy
Either party may ultimately choose to terminate the arrangement, premised upon lack of results, medical risk to the parties, or for financial considerations. In one of the author's cases, a Georgia traditional (artificial insemination) surrogate terminated the arrangement after several insemination attempts. Great distance (the infertile couple resided in California) exacerbated differences, as surrogate had hoped for a closer emotional relationship.
5. Sexual Abstention
Both the surrogate and surrogate's husband (or “significant other”) must agree to abstain from sexual relations during sensitive periods concurrent with the time of embryo transfer or artificial insemination and in some cases of in vitro fertilization, until fetal heartbeat has been established.
6. Number of Embryos Per Transfer Cycle
The greater the number of embryos transferred per cycle, the greater the likelihood of pregnancy, as well as multiple pregnancies. This enhances the prospect of premature birth. A draconian solution is “selective reduction,” or the culling of developing fetuses in utero. A far preferable approach is limiting the number of embryos transferred during a particular cycle. The American Society of Reproductive Medicine (ASRM) is apparently developing a protocol limiting the number to four at most, and fewer if fecundity is more pronounced. See attached August 11, 2001independent .co.uk article entitled “Surrogate Mother Sues Over Demand for Abortion.”
A panoply of issues emerges upon the surrogate's becoming pregnant. They include:
1. Agreement to Carry the Child or Children Until Delivery
a) Privacy/Roe v. Wade Issues
As established by the United States Supreme Court, fundamental rights of privacy govern a woman's ability to control her reproductive freedom and, hence, her pregnancy. Surrogacy injects another element into one of the most hotly debated issues of our day-- the surrogate has agreed to become impregnated, and she may not even have a genetic tie to the child she is carrying.
The law has not developed appreciably in this area, and, hence, it is of paramount concern that the parties address this issue fully, with the assistance of the psychiatrist/psychologist/ counselor in order to agree in advance as to the course of action to be taken upon the happening of certain occurrences. The agreement may or may not be legally enforceable on these issues. The agreement should include:
Genetic or developmental testing, such as for amniocentesis and chorionic villus.
Genetic testing to substantiate actual parentage.
iii. Protocols concerning risk assessment to the surrogate and weight to be afforded the recommendations of the obstetrician.
Expense reimbursement in accord with the various scenarios.
Acknowledgments of the infertile couple to assume all parental obligations for the child, regardless of its physical or mental condition, along with enforcement mechanisms in the event the infertile couple seeks to shirk their agreed upon obligations.
vii. Selective Reduction. Often, in gestational surrogacy, the infertility physicians transfer multiple embryos, with the probability that only one of the embryos will become viable. However, multiple pregnancies are not uncommon, and the parties may insist upon selective reduction, whereby an invasive procedure culls some of the viable embryos. This is obviously a highly sensitive issue, and carries some risk. See V(c)(6) of these materials.
b) Medical Emergencies
Protocols must be established that surrogate shall comply with the directives of obstetrician, except in medical emergencies.
Surrogate shall agree she shall not place the fetus at risk during pregnancy and shall refrain from behavior which bears inappropriate risk. These include:
iii. Illegal drug consumption;
Non-prescription/prescription medication, not authorized by the obstetrician.
d) Prenatal Care Compliance
Just as the surrogate agrees not to injure the fetus through inappropriate or high risk behaviors, correspondingly she must agree to comply with obstetrician's instructions which will benefit the development of the fetus, such as a course of treatment including progesterone injections and oral medications during the first trimester of the pregnancy. One of the benefits of surrogacy versus traditional adoption is the commissioning of a competent, highly motivated surrogate, who shall exercise appropriate prenatal care. The risk of conditions caused by, or exacerbated by, improper prenatal care is substantially reduced in the surrogacy context.
e) Cesarean Delivery
Under certain circumstances, Cesarean delivery may be mandated. For instance, contracting of certain sexually-transmitted diseases such as herpes, may warrant inclusion of such a provision.
f) Cooperation and Required Filings or Hearings
The laws of a particular state may permit determination of paternity and maternity of the child prior to birth of the child. If so, the following matters should be addressed:
Birth certificate designation of mother and father.
Determination of parental rights and who shall constitute mother and father of the child to be born.
iii. Release of possible parental liability and responsibility of the surrogate and surrogate's husband.
Arbiter of consent to medical procedures on behalf of the child. If possible, clarification as to who shall make medical decisions on behalf of the child to be born is highly desirable. Otherwise, it is possible that pediatricians and hospital staff will be uncertain as to who should authorize medical treatment on behalf of the child (such as customarily arises on the issue of circumcision or in a premature birth).
Full cooperation of all parties to the surrogacy. All must agree to provide affidavits, court appearances and/or testimony in order to effectuate the appropriate designation of mother and father of the child.
Declaratory judgments have afforded relief from the uncertainty and insecurity with respect to rights, status, and other legal relations inherent in third party ART and surrogacy. Equitable jurisdiction may also be invoked. See O.C.G.A. § 9-4-1.
In conjunction with paternity hearings and step-parent adoption proceedings in the artificial insemination surrogacy context, the author has utilized both declaratory judgments and principles of equity to afford the appropriate relief for infertile couples, surrogates, surrogates' husbands, and the children to be born and actually born of surrogacy agreements from inappropriate or incomplete presumptions under Georgia law.
As an alternative means of establishing maternity and paternity, the natural parents of a child are not precluded from adopting their own child. McDonald v. Hester, 115 Ga. App. 740.
While many natural parents in a surrogacy situation do not wish to adopt their own genetic offspring, and while this procedure subjects the natural parents to an investigation by the Department of Human Resources or other agency (O.C.G.A. §19-8-16), and further while this avenue requires a finding by the trial court that the adoption is in the best interest of the child (O.C.G.A. § 19-8-18(b)), it is nonetheless available as a last resort. Medical coverage can be jeopardized in the adoption context, as there could be a gap between applicable policies, and hence the author has never resorted to an adoption procedure in a gestational surrogacy.
In traditional (artificial insemination) surrogacies, the author has found success in establishing the father's rights through a paternity hearing, and then replacing the genetic mother/surrogate with the father's wife through a step-parent adoption pursuant to O.C.G.A. § 19-8-6.
Step-parent adoptions generally require:
1) Surrender of parental rights by the surrogate. O.C.G.A. § 19-8-6(a)(1);
2) Informing the surrogate of her rights to withdraw the surrender within 10 days of her signing the surrender pursuant to O.C.G.A. § 19-8-9;
3) The securing of an acknowledgment signed by the surrogate that she has surrendered her parental rights in accordance with O.C.G.A. § 19-8-26;
4) The obtaining of an affidavit from the surrogate which informs (in addition to other information) whether the biological father of the child has contributed to its support during her pregnancy or hospitalization, or made an attempt to legitimate the child, along with all financial assistance received by surrogate in connection with her pregnancy, the birth of the child, or the arranging for the placement of the child for adoption in accordance with O.C.G.A. § 19-8-26(h).
Financial disclosures of the adoptive parents are required under O.C.G.A. § 19-8-13, along with an affidavit from the adoptive parents' attorney, disclosing all sums paid or promised to that attorney (to the extent that these amounts exceed $500).
In adoption, there is always the risk a court would not find it in the child's best interests to have either or both of the infertile couple declared parents of the child. Gaps in medical insurance could manifest. Furthermore, the affidavit disclosing support payments must withstand the scrutiny of the Unlawful Inducements Statute (O.C.G.A. § 19-8-24).
E. Delivery/Custody/Post-partum Care
The agreement should clarify the circumstances concerning the onset of labor, actual birth, the transition of the child from the surrogate's uterus to the physical custody of the infertile couple, as well as the lingering issues concerning the surrogate and her health.
1. Labor and Delivery
Except in the case of emergency, surrogate should promptly notify infertile couple in order that they be able to attend the delivery of the child.
2. Place of Birth
The hospital where it is anticipated where the child shall be born should be designated in advance, due to insurance reimbursement considerations; proximity to infertile couple and surrogate's residences or places of employment; and coordination with hospital staff to address unique aspects of third party A.R.T. and surrogacy delivery.
3. Transfer of Physical Custody
The surrogate shall agree to transfer physical custody of the child to the infertile couple in the gestational surrogacy context, and to the genetic father in the artificial insemination context in a manner consistent with the parental obligations of the declared father and/or mother.
4. Obligation of Infertile Couple to Assume Custody And Responsibility For The Child
Infertile couple must agree to assume custody and all financial responsibility upon the birth of the child, regardless of its physical or mental condition. There should be enforcement mechanisms in the event that the infertile couple refuse to comply with this element of the agreement.
5. Naming of The Child
Infertile couple shall name the child or children to be born, and surrogate will not attempt to name the child.
6. Contingency For Death of Infertile Couple
If either of the infertile couple should die prior to discharge of the child from the hospital, the remaining spouse should be obligated to solely care for and provide for the child. In the event both of the infertile couple predecease the child's discharge from the hospital, guardians should be named and life insurance in sufficient amounts obtained.
Disposition of any frozen embryos or eggs which are maintained by the infertility physician/clinic should be addressed in the agreement or in the last will and testament of the infertile couple. There are obvious costs to continue to maintain frozen embryos. Methods of disposal can be quite controversial, so they should certainly be addressed. They include:
a) Donation to known or unknown couples;
c) Tissue donation;
d) Medical research.
8. Post-partum Psychiatric/Psychological/Counseling Care of Surrogate
The issue of psychiatric/psychological/counseling care should be broached in the agreement, in order to ease the transition of the surrogate from physical carrier of the child during pregnancy to the juncture where she is separated physically from the child. Costs of treatment should be addressed.
9. Establishment of Actual Paternity/Maternity
There may arise a situation where genetic lineage of the child is questioned (including situations where the surrogate might have breached the sexual abstention agreement during conception or embryo transfer). The parties should fully agree to make themselves available for paternity/maternity determination in the event this unfortunately becomes an issue.
With the difficulties inherent in a pregnancy, the last thing any of the parties need is unwarranted scrutiny from media, curiosity seekers, or “champions of the community” who have decided they wish to limit infertile couples family-building options. Groups and individuals opposed to surrogacy should not have an opportunity to interfere or complicate the pregnancy and delivery of the child.
Disclosure of the surrogacy relationship should be limited to the individuals necessary for its realization.
Issues such as publicity, authorship of books, or appearance on media should also be contained in the agreement.
The filing of pleadings and conduct of hearings or required government filings should be coordinated so as to assure maximum confidentiality.
G. Informed Consent
While this matter has been touched upon elsewhere, good practice dictates that the medical and legal risks be disclosed to all parties involved. While informed consent questions customarily are directed to treating physicians, in the third party A.R.T. and surrogacy context, the infertile couple is requesting the surrogate to undergo medical treatment which carries with it attendant risks. In the usual informed consent context, the individual would evaluate the risks and desirability of elective medical procedures, for the sole benefit of that individual. In the surrogacy context, however, the infertile couple intervenes in the customary doctor-patient relationship and is advocating that the surrogate undertake risk for the benefit of the infertile couple.
As a consequence, it makes abundant good sense to assure:
The procedures and courses of treatment are fully disclosed.
The potential benefits are disclosed.
The potential risks, along with their likelihood of occurrence are disclosed.
The probability of success is documented.
1. Disclosures to the Surrogate
a) Risks of customary pregnancy and childbirth.
b) Egg extraction (which may occur in the artificial insemination context where the surrogate has undergone tubal ligation).
c) Risks of implantation.
2. Disclosures to the Wife of the Infertile Couple
Where the wife's eggs are satisfactory for conception, yet she is unable to carry the child to term, then the risks of egg extraction should be disclosed.
H. Compassionate Surrogacy
The issue of compensation of the surrogate is often nettlesome, if not prohibited completely or limited to reimbursement of specific forms of expenses (such as generally accepted reimbursement for medical expenses related to the pregnancy). Again, consult the law of the particular state, as compensating the surrogate might fall under prohibited “baby selling.”
Proscriptions against baby selling (in the adoption context) often provide the template as to what forms of reimbursement or compensation are acceptable. The following considerations may shed some light on whether particular forms of reimbursement or compensation are allowed:
1. Support Obligation of Child Born Out of Wedlock
A child born to an unmarried surrogate or a surrogate married to one other than the sperm donor is generally considered to be out of wedlock or illegitimate. The woman bearing the child generally has a support obligation to the child, and the genetic father of the child generally has a support obligation to the child, absent determination by a court.
Both biological parents of an "illegitimate child" (or a "child born out of wedlock," as defined by the case law) have a support obligation to the child. Failure to support a child could support a criminal abandonment action, even if another individual is caring for the child. In re: M.A.F., 254 Ga. 748, 750.
It is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child until that child reaches the age of majority, except to the extent that the duty of one parent is otherwise further defined by court order. O.C.G.A. § 19-7-24.
2. Child Abandonment
Failure to support one's genetic child ?either within or outside of lawful wedlock,? often constitutes the criminal offense of child abandonment.
In Georgia, if the mother or father of a child, which is either legitimate or born out of wedlock, abandons the child who is in a dependent condition, the abandoning parent commits the crime of child abandonment. When the abandoning parent does not furnish sufficient food, clothing, or shelter for the needs of the child, the child shall be considered to be in a dependent condition. O.C.G.A. §19-10-1.
Child abandonment shall be punishable as a misdemeanor, unless the abandoning parent leaves the state while the abandoned child is in a dependent condition. In that event, the abandoning parent shall be guilty of a felony, punishable by imprisonment of not less than one nor more than three years.
Parentage of the child, by the father, shall be determined by blood test. O.C.G.A. §19-10-1(f). A female charged with abandoning a child may contend that she is not the mother of the child which has been abandoned. O.C.G.A. § 19-10-1(I).
Though a child is born out of wedlock, the father may be required by the court to pay the reasonable medical expenses paid by or incurred on behalf of the mother due to the birth of the child. O.C.G.A. § 19-10-1(g).
A salient rationale in a court proceeding to establish the genetic parent in the infertile couple is to avoid actual or potential commission of these crimes.
3. Abandonment of Pregnant Woman in Dependent Condition
Failure to provide for a dependent pregnant woman (often restricted to a wife of the impregnating male) may constitute a criminal offense.
4. Prenatal Support Obligation
Some states require the impregnating male to provide support for a child not yet born, recognizing that such a regimen is highly desirable in order to assure the healthy gestational development of the child. These states have determined the mother (or surrogate carrier of the child) should not bear such prenatal expenses exclusively.
In Georgia, the father of a child born "out of wedlock" has a prenatal support obligation to the child to be born. Coxwell v. Matthews, 263 Ga. 444.
5. Components of Allowable or Prohibited Expenses
States often draw distinctions between what is allowed to be paid to or for the benefit of a woman impregnated in the ?out of wedlock? context, who intends to relinquish the child to another. These include:
a) Medical Expenses
Medical expenses related to the delivery of the child are often permitted to be reimbursed.
b) Legal Expenses
Reasonable legal expenses which are not a clandestine form of a “finder's fee” for locating the baby, are often allowed.
c) Lost wages
Some states do not permit reimbursement for the surrogate's lost wages as a result of her pregnancy, nor for illness resulting from the pregnancy.
d) Living expenses
States vary on whether the surrogate's living expenses are reimbursable.
Many states do not allow compensation of the pregnant woman in the adoption or surrogacy context, believing it either to be a disguised form of compensation for placing the child up for adoption (“baby selling”), or as offensive to public policy.
I. Life Insurance on Surrogate
Particularly if the surrogate has dependent children, the infertile couple should consider putting in place a policy of life insurance on the surrogate as a safeguard to the risks of pregnancy and childbirth (which the infertile couple requests that the surrogate bear). The policy customarily would become effective when surrogate undergoes fertility treatments, and should continue through childbirth.
Also to be considered is disability insurance on the surrogate, yet this is often not available if the surrogate is not presently employed.
As surrogacy birthing arrangements are novel, and it is rare where a state has determined that all facets of a surrogacy arrangement are enforceable, then it is preferable that the parties to the contract be so informed, and should agree to bear the medical, emotional, psychological, and legal risks of the arrangement.
VI. Paternity/Maternity Adjudication
As the laws of most states assume that a woman who gives birth to a child is the mother, and that her husband is the father of the child, there is generally some form of hearing or filing with the appropriate state agency or court. Otherwise, birth certificates probably issue in the names of other than the infertile couple.
The traditional laws on adoption presuppose no genetic ties to the child. One generally does not have to adopt one's own genetic child. However, if there is no established judicial mechanism for paternity/maternity/surrogacy determination issues, adoption may prove to be a fallback mechanism in order to establish that the infertile couple is declared mother and father of the child.
In artificial insemination surrogacy, it is often necessary to have a step-parent or similar adoption proceeding, whereby the genetic mother (the surrogate) is replaced as mother of the child by the wife of the infertile couple.
1. Advantages of Adoption
There may be certain advantages to an adoption in the event there is not a recognized paternity/maternity/surrogacy method of determination. These may include dovetailing of the law of the state and with sister states under the Interstate Compact on the placement of children, where the infertile couple and the surrogate do not reside in the same state.
2. Disadvantages of Adoption
a) Adoption by an infertile couple is inconsistent in the case of gestational surrogacy, as it would require adoption of the infertile couple's own genetic child.
b) Investigation by social agencies. Adoption generally requires a government mandated investigation of the individuals who seek to be declared the parents of the child. This includes home studies, extensive divulging of financial information, and other issues which would affect the desirability of placement of the child with the adoptive parents. There is a possibility that a social worker investigating the background of the proposed adoptive parents would recommend against adoption.
c) Application of “best interests of the child” The Court must generally apply the “best interests of the child” standard in adoption matters. Genetic ties are often not an issue in adoption proceedings, and, hence, it is possible the court could disregard the genetic tie to the child or minimize its impact, in deciding against adoption.
B. Paternity/Maternity/Surrogacy Adjudication
Where these proceedings are allowed, they often more directly address the surrogacy arrangement.
1. Advantages of Paternity/Maternity/Surrogacy Proceedings
a) These represent the true nature concerning the parentage of the child. Adoption proceedings generally presuppose no genetic link to adoptive parents. In the longer run, explanations are not required to the child concerning why its genetic parents abandoned it.
b) Control by the Infertile Couple. In adoption proceedings, social agencies make recommendations as to whether the infertile couple would be appropriate parents. The court independently examines the circumstances of the infertile couple's financial status, living conditions, and predisposition to be appropriate parents in order to what is in the “best interest” of the child. This is generally not present in a paternity/maternity/ surrogacy proceeding.
The law confers rights to genetic parents. Most laws presumptively award custody, control, and responsibility to genetic parents, and proof of this genetic tie to the child generally automatically places the genetic parents (the infertile couple) in control of the destiny of their child.
c) Seamless Web of Insurance Coverage. Where there can be a pre-birth determination of paternity and/or maternity, then often the prospect of a gap in insurance coverage involving the surrogate mother and the child can be avoided.
2. Disadvantages of Paternity/Maternity/Surrogacy Proceedings
a) These hearings may only be contemplated under the law as available options following the birth of the child. Obvious shortcomings in this scenario include uncertainty during the pregnancy and birth of the child as to its parentage and, hence, who makes medical treatment decisions on behalf of the child as well as who would have custody of the child pending this determination.
b) Proof of Genetic Tie. Generally, the parties to the action (infertile couple, surrogate, surrogate's husband) are in accord as to the maternity and paternity of the child. Courts often require additional evidence. Affidavits of the infertility physicians may suffice. Testimony may be required, from either the parties or possibly the infertility physicians. If the surrogate has undergone a tubal ligation, or her husband a vasectomy, this is corroborating that the infertile couple are the parents of the child. Blood type analysis and genetic testing may be required, which is much more likely following the birth of the child.
VII. Egg Donation/embryo Donation/cryopreservation Contracts
Whether by law or by custom and practice, egg and embryo donation contracts are often required by infertility practitioners. Cryopreservation, or the freezing of embryos for later use, is often coordinated in the egg donation contract.
A. Elements of an Egg Donation/Embryo Donation Contract
1. Identification of Parties
Appropriate parties include the donor, her husband if married, the sperm donor/father, the “mother/recipient” (the woman who shall carry the child and ultimately be deemed its “mother”), as well as the attending infertility physicians/clinic. The various responsibilities of each should be set forth in the contract.
2. Establish Paternity/Maternity
With egg donation, the egg retrieval should coincide with sperm donation, in vitro fertilization, and placement of embryos into the carrier (generally the woman ultimately to be deemed the “parent” of the child to be born), and, hence, the contract should establish who will ultimately be deemed to be the parents of the child.
With embryo donation, both parents should be established.
3. Establish Procedures to be Undertaken
Egg donation involves a course of medical and pharmaceutical treatment, which generally induces ovulation. The invasive procedure of physically removing eggs from a donor is required, and diagnostic tests (such as HIV/AIDS and ultrasound examinations) assist the medical practitioners in timely retrieving the eggs.
Eggs were traditionally donated “fresh,” but now eggs may be donated in a “frozen” or cryopreserved form.
Embryos may be donated “fresh” (i.e., donated sperm and donated eggs are fertilized in vitro and immediately used), but most involve donation of cryopreserved embryos. Unless all embryos are donated to the intended parents, the agreement should address how many embryos are to be donated during a particular cycle, and how many cycles shall be entertained. Generally, the infertility physician selects which embryos are to be utilized. If all embryos are donated, then the intended parents must establish with the infertility clinic storage and disposal options of embryos.
4. Informed Consent
There are risks of the medical procedures to be undertaken, and good practice would dictate that the contract reveal the risks of the procedures to be undertaken.
5. Genetic Disclaimer
Certain diseases or conditions may be known to exist in the donor's family, or may be found within certain populations or ethnic groupings. These conditions should be divulged and the risks assumed by the recipient couple.
In order to assist the attending physicians of the child or children to be born, medical and genetic history of donor and donor's relatives should be provided from the individual(s) who donate the egg and/or sperm.
6. Relinquishment of Donor's Possible Rights
In the non-surrogacy, traditional context, genetic ties to a child to be born are specifically recognized. The genetic mother and father of a child generally have parental rights in relation to the child. To avoid responsibility for rearing the child, a relinquishment is desirable.
This relinquishment is akin to traditional forms of sperm donation where the donor chooses not to be responsible for, nor have any parental rights to, the rearing of any child to be born as a result of the donation. While the technology of egg retrieval is far more technologically advanced than sperm donation, the justification for relinquishment of rights and obligation is quite similar to sperm donation. Embryo donation involves the relinquishment of rights of both the sperm and egg donor. In many states, neither the statutes nor case law have resolved the issue of egg and embryo donation, and, hence, it is appropriate for the egg and embryo donor to contractually waive any such rights.
Additionally, if the egg donor is married, it would be wisest to disclaim any paternity on the part of the donor's husband.
B. Cryopreservation/Disposal Issues
Embryos may be implanted into the recipient who will carry the embryo to term, or they may be cryopreserved (or frozen for later use). Numerous eggs are generally retrieved during the egg donation process, and, hence, the surplus is often cryopreserved in the event that the carrier/recipient does not immediately become pregnant in the first cycle of treatment and, hence, additional embryos are available for subsequent cycles. Some embryos may remain, and the method of disposal or alternate use should be addressed. With the recent advances in egg freezing, the storage and future use of eggs should also be subject to an agreement.
Costs are associated with continued preservation of eggs or embryos, and, hence, the infertility clinic or other holder/preserver of the eggs or embryos has an obvious expectation in being compensated for the length of time which the eggs or embryos are cryopreserved.
2. Availability for Use by the Recipient Couple
The cryopreserved eggs or embryos may be available for use by the recipient woman or couple (or by the genetic father and the recipient “mother” in a donated context) in subsequent cycles. Divorce or death of either or both of the intended “parents” should be addressed in the Embryo Cryopreservation Agreement.
3. Informed Consent/Disclosure Issues
The risks associated with pregnancy, and the procedures to be utilized should be disclosed in the agreement. The risks should be assessed and discussed.
4. Period of Cryopreservation
The infertility clinic/cryopreservation laboratory may hold the eggs or embryos for a fixed period of time, after which arrangements should be made for disposal or for an extended period of storage. Address changes should be conveyed to the cryopreservation laboratory.
5. Methods of Disposal
There are three principal methods of disposal of embryos which are not implanted into the host carrier. These are:
a) Egg or Embryo Donation
Eggs or embryos may be donated to others who desire to parent children. Generally consent is preferred for donation, as the involved parties may wish to “screen” each other.
b) Cell Culture and Degeneration
Thawed embryos usually degenerate in less than a week and continued growth is presently impossible without placement into a uterus.
c) Scientific Study
Client preferences and ethical concerns should be explored in depth for this possibility.
VIII. Selected Foreign Authority
Most (if not completely all) of the law in the arena of third party A.R.T. has developed outside of Georgia. As a consequence, the persuasive authority from foreign jurisdictions is the principal cynosure to the legal practice of third party A.R.T. in Georgia. The following is a resource for the examination of topics in greater depth.
Only a hand full of state legislatures have specifically legalized surrogacy: NEV. REV. STAT. ANN. § 126.045. N.H. REV. STAT. ANN. §§ 168-B:1 to B:32. FLA. STAT. ANN. §§ 742.13, .15, .16. VA. CODE ANN. §§ 20-156 to –165. ARK. CODE ANN. § 9-10-20 (b). Federal legislation is limited to the accurate reporting of success rates of infertility clinics. 42 U.S.C. § 263a-2 (1994).
More states have sought to limit the availability of surrogacy as a reproductive option. See IND. CODE ANN. § 31-8-2-1 (West Supp. 1996) (all surrogacy contracts are void and unenforceable); WASH. REV. CODE ANN § 26.26.250 (West Supp. 1997) (making it a gross misdemeanor); ARIZ. REV. STAT. ANN. § 25-218 (A) (West 1991) (all surrogacy contracts are void and unenforceable); KY. REV. STAT. ANN. § 199.990 (Michie 1995) (violation is a felony); LA. REV. STAT. ANN. § 9:2713(A) (West 1991) (all surrogacy contracts are void and unenforceable); MICH. COMP. LAWS ANN. § 722.855 (West 1988 & Supp. 1993) (all surrogacy contracts are void and unenforceable); MICH. COMP. LAWS ANN. §§ 722.857(2), .857(west 1993 & Supp. 1996) (making it a felony to procure surrogacy agreements for compensation or to enter into surrogacy contracts with a minor or a mentally infirm woman); NEB. REV. STAT. § 25-21,200(1) (Supp. 1996); N.Y. DOM. REL. LAW § 123 (McKinney Supp. 1997) (imposing a felony for third parties who recruit or procure women to become surrogates and leveling a civil penalty upon those who enter into a surrogacy agreement); D.C. CODE ANN. § 16-402 (Supp. 1996) (assessing a civil penalty, and/or imprisonment, for personal involvement in, or assisting others, to enter into a surrogacy contract); N.D. CENT. CODE § 14-18-05 (1991 & supp. 1995) (all surrogacy contracts are void and unenforceable); TENN. CODE ANN. § 36-1-102(46) (A) (1996) (all surrogacy contracts are void and unenforceable); UTAH CODE ANN. § 76-7-204(1)(d) (1995) (making it a misdemeanor).
Commercial surrogacy is specifically banned in a number of countries: Switzerland, France, Greece, Israel, Germany, Spain, Britain, and Norway. See Leo Uzych, The Mother of All Questions: How to Govern Surrogacy, PA. L.J., Mar. 8, 1993, at 2) . Germany bans egg donation. See id. At 215. In Sweden, the use of donated ova or sperm and the anonymous donation of sperm have been banned. See id. At 215-16 (citing Improvised Guidelines on Motherhood's Brave New World, GUARDIAN (London), Jan. 5, 1994, at 9). Israel was the first country to legalize noncommercial surrogacy arrangements. See id. At 219.
The law of surrogacy has been marked by certain generalities.
First, traditional (artificial insemination) surrogacy has a ready fall back template. In the vacuum into which surrogacy appeared, the adoption default paradigm provides some direction. While the pregnancy was planned, it nonetheless could be treated as a more common out of wedlock paternity scenario; The surrogate is the actual genetic and biological mother, so she could either agree upon birth to surrender the child through the application of customary adoption law or she could retain the child and seek child support. This happened in the celebrated (infamous among third party A.R.T. practitioners) case of In re Baby M, 537 A.2d 1227, 1248 (N.J. 1988), where Mary Beth Whitehead, a traditional surrogate, refused to surrender the child. See also In Re: Marriage of Moschetta, 25 Cal.App. 4th 1218. . In R.R. v M.H., 698 N.E.2d 790 (Mass. 1998), although the Massachusetts court applied an adoption template to an artificial insemination/traditional surrogacy in the absence of controlling legislation and did not uphold the surrogacy contract, the court specifically left open the prospect that it would favorably regard gestational surrogacy contracts.
The courts have viewed more favorably gestational surrogacy. Since the surrogate is not genetically the mother of the child she is carrying, the adoption default template is less intriguing to jurists. Johnson v Calvert, 851 P.2d 776 (Cal. 1993) witnessed a gestational surrogacy, where both the ovum donor/genetic mother (intended mother under the surrogacy contract) and the surrogate/gestating mother presented claims of biological motherhood under the Uniform Parentage Act; with such competing claims, the California Supreme Court resolved the impasse by reference to the parties' intentions as expressed in their surrogacy contract—finding in favor of the intended parents. The California Court of Appeals in In re Marriage of Buzzanca, 72 Cal.Rptr 2d 280 (Ct. App. 1998), established the high water mark in upholding contractual parties' intentions over genetic considerations. There, an embryo from allegedly anonymous genetic contributors, was transferred into a surrogate under a contract with the intended non-genetic parents. The marriage of the intended parents dissolved prior to birth of the child and the surrogate did not seek parental rights. The court ruled that the intended mother's consent in the agreement constituted a ground on which to base her maternity, despite a lack of any genetic linkage to the intended mother and her husband, the intended father under the contract who attempted to repudiate his agreement and his paternity. Buzzanca allows the maternity of a non-biological mother, and child support obligations of the non-biological father who had agreed in advance of the pregnancy to his paternity. In R.R. v M.H., supra, the Massachusetts court telegraphed in dicta that it would favorably view gestational surrogacy while voiding the artificial insemination/traditional surrogacy then before it.
On a constitutional level, most are familiar with the reproductive rights afforded through privacy auspices under Griswold v Connecticut, 381 U.S. 479 (1965) to married couples, and to unmarried persons, Eisenstadt v Baird, 405 U.S. 438 (1972). In the surrogacy context, constitutional principles were applied to overturn the anti-surrogacy statute in Arizona. Under the legislation, married men had a rebuttable presumption that they were the legal fathers of their wife's children, while there was established a conclusive presumption that women were the legal mothers of the children that they bore. In Soos v. Superior Court County of Maricopa, 897 P.2d 1356 (Ariz. App. Div. 1 1994), Arizona's offending anti-surrogacy statute was declared unconstitutional for violating both the Arizona and United States equal protection clauses.
From the surrogacy practitioner's perspective, certain states have addressed admirably nettlesome questions such as compensation of surrogates. New Hampshire allows pregnancy-related expenses, medical expenses, lost wages, including the period of post-partum recovery, health, disability and life insurance costs during the term of pregnancy and six weeks thereafter, reasonable attorneys fees and court costs, and counseling fees. NH. Rev. State. Ann. § 168-B: 25(V)(a-e)).
West Virginia allows for the payment of “fees and expenses included in any agreement in which a woman agrees to become a surrogate mother.” If the surrogate resides in West Virginia and delivers the baby in West Virginia, she can be paid for her services. W.Va. Laws § 48-4-16(e)(3).
A highly desirable component of any statute would be advance judicial approval of any surrogacy agreement. N.H. Rev. Stat. Ann. § 168-B; 16(1)(b), 168-B: 17; Va. Code Ann. § 160(B)(6). Otherwise, both commissioning couples and surrogates run the risk of undertaking a surrogacy arrangement, initiating pregnancy, and then being faced with a possibility of “returning” to the “status quo” if the contract is deemed unenforceable. At the same time a surrogate is heavy with child. These 2 states are the most forward looking on the ultimate surrogacy questions.
This contrasts with the customarily pejorative light in which many view the role of surrogates, particularly with their presumed susceptibility to exploitation. The court in In re Baby M, 537 A.2d 1227, 1248 (N.J. 1988), concluded that a surrogate is generally the victim of a class distinction where the surrogate's need for money subjects her to exploitation. The surrogate “never makes a totally voluntary, informed decision, for quite clearly any decision prior to the baby's birth is, in the most important sense, uninformed, and any decision after that, compelled by a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment, is less than voluntary.” Compare with the analysis of a later court in Johnson v Calvert, 851 P.2d 776 (Cal. 1993), where the California Supreme Court upheld the legality of gestational surrogacy contracts. There, the court reasoned that surrogates may originate from a lower economic class, but are no more “exploited” by surrogacy than they are by their economic necessity to accept lower-paid or otherwise undesirable employment. Available data demonstrates that surrogates are often additionally motivated by compassionate inclinations such as assisting others in family building. They tend to have annual incomes in 1987 dollars of between $15,000 and $50,000, so they can not be said to be totally destitute. John Lawrence Hill, Exploitation, 79 CORNEL L. REV. 631 (1994).
The author's experience is that compensation is obviously important to a woman who will be undertaking a 24 hour a day for at least 9 months, accompanied by what is reputed to be occasional discomfort. However, the vast majority of surrogates are motivated by compassionate, often religious, inclinations (pregnancy comes easy to these ladies; they cherish their children and want to confer the ultimate gift upon the barren), and the academic musings of the commentators have not mirrored the situations to which the author has been privy.
Another component of 3rd party A.R.T. is gamete donation (sperm and egg), along with embryo donation. Sperm donation and cryopreservation being relatively a “low tech” issue for the last 40 to 50 years, many states have addressed the issue as Georgia has. Egg donation coincides with the technological advances inherent in in vitro fertilization. Louise Brown, the first child born of the procedure (but without donated gametes) in England is now in her early 20's. Most states have failed to evidence their cognizance of these medial advances and have not enacted legislation to mirror the donation of sperm. But as a practical matter, the egg donation issue should be treated in similar fashion to sperm donation, under equal protection auspices. See Soos v. Maricopa County, supra.
The literature and case law is more pronounced on the issue of embryo donation. The first state to grapple with the issue was Tennessee. The Supreme Court of Tennessee, in Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), cert. denied sub nom. Stowe v. Davis, 507 U.S. 911 (1993), considered the issue in a dispute between a husband and his former wife after the two were divorced. The wife sought to donate the preembryos at issue to another couple for implantation. The court stated that agreements between donors regarding disposition of the preembryos "should be presumed valid and should be enforced." Id. at 597. In that case, because there was no agreement between the donors regarding disposition of the preembryos, the court balanced the equitable interests of the two parties and concluded that the husband's interest in avoiding parenthood outweighed the wife's interest in donating the preembryos to another couple for implantation. Id. at 603.
The Court of Appeals of New York, in Kass v. Kass, 696 N.E. 2d 174 (N.Y. 1998), agreed with the Tennessee court's view that courts should enforce agreements where potential parents provide for the disposition of frozen preembryos. The issue arose in that case also in the context of a dispute between a husband and his former wife after divorce. The wife sought custody of the preembryos for implantation. According to the New York court, agreements "should generally be presumed valid and binding, and enforced in any dispute between [the donors]."18 Id., citing Davis v. Davis, supra at 597. While recognizing that it is difficult for donors to anticipate the future of their relationship, the court concluded that such agreements minimize misunderstanding, maximize procreative liberty, and provide needed certainty to IVF programs.
The court determined that the consent form signed by the donors with the IVF clinic unequivocally manifested the donors' mutual intent, and that this intent was further highlighted by the divorce instrument, which was consistent with the consent form and had been signed only months before suit was begun. Therefore the court enforced the agreement that provided that the frozen preembryos be donated to the IVF clinic for use in research. In sum, the court held that as the husband did not desire to create a pregnancy with the embryos, “agreements between progenitors . . . should generally be presumed valid and binding, and enforced between them.”
Not so, in the most recent manifestation of this conundrum. In A.Z. vs. B.Z., SJC-08098, the Supreme Court of Massachusetts arrived at a diametrically opposed position on a similar issue. A consent form had been signed as in the previously recited case. However, the Massachusetts court found it significant that the consent form had been drafted by the cryopreservation laboratory more for its purposes rather than for determining rights among the divorced parents to their cryopreserved embryos; that the wife had already borne a set of twins with the cryopreserved embryos subject to the agreement; and that the court had serious reservations on the issue of “forced procreation.” The court ruled that a consent form signed a number of years earlier under such circumstances would not bind the former husband to become a father over his present objection.
Statutorily, only five states have passed legislation defining the status of children born via embryo or oocyte (egg) donation. Those recognizing oocyte donation are Florida (Fla. Stat. Ann. § 745.11-.17, 1995), Oklahoma (Okla. Stat. Ann. Tit. 10 Sec. 544, 1991), North Dakota (N.D. Cent. Code § 14-18-01-07, 1995), Texa (Tex. Fam. Code Ann. § 12.03A-.04, 1995), and Virginia (Va. Code Ann. §20-156 to 165 and § 32.1-45.3, 1995). These statutory schemes relieve an egg donor from all parental responsibility or rights and transfer them to the recipient intended mother. All of these states, except for Oklahoma, also recognize embryo donation.
Provider liabilities have been explored in two cases. In Stiver v. Parker, 975 F.2d 2261 (1992), a traditional surrogate sued a surrogacy program, its director—the late Noel Keane--and the four doctors and one lawyer affiliated with the program for negligence after her baby was delivered with cytomegalovirus (CMV). She claimed failure to warn of the possibility of the infection through artificial insemination and failure to perform medical screening on the semen. The federal appeals court ruled that all of the defendants were “engaged in the surrogacy business and expected to profit thereby” and applied a higher standard than simple negligence on the providers. The court established an affirmative duty of protection to keep the surrogate who they recruited from harm. A significant factor emphasized was the surrogate's very brief consultation with a program-supplied lawyer, who expected the surrogate to immediately sign the consent form.
A comparable standard of care was articulated in a wrongful death case involving a traditional surrogate and the same late Noel Keane as broker. Huddleston v. ICA, Inc., 23 FLR 1387 (Pa. Sup. Ct., 1997) witnessed the killing of the child born of the surrogate by the single man/intended father within six weeks of the child's birth. The appellate court applied the higher standard of the Stiver decision, noting that a “special relationship” exists in the surrogacy business among all of the participants, resulting in an affirmative duty of protection. As such, the business is liable for foreseeable consequences which included child abuse.
Third party A.R.T. and surrogacy are options which medical technology now makes available, yet the laws which govern the building of families have generally not kept pace. As a consequence, most states (and Georgia in particular) have not specifically addressed these issues, and if they have, have done so in a limited context.
It is hoped that these observations may assist counsel in weighing some of the considerations involved in third party A.R.T. and surrogacy.
Much of the success/failure evidence in surrogacy and third party A.R.T. is anecdotal. While there have been attempts to evaluate and compile data, it is doubtful that these attempts at study are, as yet, statistically valid. This may well ensue due to privacy inclinations. In the author's practice, court files are customarily sealed and many arrangements (such as egg donation and embryo donation) are matters of private agreement which are generally not disclosed to governmental nor to other entities.
That established, the best source of information the author has located is Andrew Vorzimer of the Beverly Hills, California firm of Vorzimer, Garber, Masserman, and Ecoff. While Andy practices in a state which recognizes the validity of surrogacy contracts, his practice, being associated with the Center for Surrogate Parenting in Beverly Hills, is national and international in scope.
Andy reports that there have been in excess of 35,000 surrogate deliveries since 1979. Of these, there were 24 reported instances of surrogates repudiating the contract and attempting to keep custody; and there were 65 reported instances of intended parents attempting to abandon a pregnant surrogate without fulfilling their commitment to accept the children upon birth.
Andy cautions that he “inherited” some of these statistics initially, and has attempted to fastidiously update them, and as a consequence, one should view them somewhat askance.
What this indicates is that surrogacy is successful 99.8% of the time both in terms of the parents accepting the children upon their birth and in terms of the surrogate surrendering the children upon birth. Contrast this with 2 common misconceptions:
That surrogacy is risky in terms of the parties performing their obligations. Media and soap opera portrayals to the contrary, what other fields of human endeavor succeed over 99 % of the time?
In the exceedingly unlikely event that a surrogacy arrangement is not successful, it is 3 times more likely that the intended parents will not accept the child than it is that the surrogate will not surrender the child. A significant factor in these situations is that the intended parents have suffered marital difficulties and/or divorce during the period of gestation.