Surrogacy and Egg & Sperm Donation- What You Should Know From a Legal Perspective
Finding out you may need to use a surrogate or a egg or sperm donor to build your family can be a confusing and overwhelming time. Not only do you need to think about how the medical aspect will work, but there are legal matters to consider as well.
We asked Meg Ledebuhr, Partner Attorney at the Midwest Fertility Law Group, a few questions about the legal aspects of surrogacy and what you should know before beginning the process.
Q: We have decided to use a surrogate. What steps do we need to take before beginning the medical process?
A: Once a prospective surrogate or intended parent has decided to commit to surrogacy, the next steps are to decide what type of surrogate they will pursue and the specific professionals they will work with.
Intended Parents can proceed with one of two types of surrogacy arrangements: traditional and gestational. In traditional surrogacy, the surrogate is also the biological mother of the child she carries. Her egg is fertilized using sperm from the intended father or a donor using intrauterine insemination. In gestational surrogacy, the child is not biologically related to the surrogate. The embryo is instead created using an egg from the intended mother or a donor and sperm from the intended father or a donor using in vitro fertilization. Once the egg is fertilized in the laboratory, the embryo is transferred to the surrogate.
If Intended Parents and the Surrogate already know each other and determined they are a good fit, they can utilize a surrogacy attorney to complete the legal work and a mental health professional to complete the mental health screening. If Intended Parents and the Surrogate need matching services, they can work with a surrogacy agency to provide matching, in addition to other case management services.
After the Intended Parents and Surrogate have decided to proceed, the clinic will begin the medical screening process.
Q: What do I need to know about surrogacy contracts?
A: Each party to the surrogacy arrangement must first obtain their own attorney (although the intended parent will pay the legal fee for the surrogate’s attorney) and negotiate a contract describing their arrangement. The role of a legal contract is to: (1). Memorialize Intent (2). Deal with contingencies in pregnancy and (3). Allocate risks and rights and responsibilities of the Parties.
There are certain issues that must be covered in any surrogacy contract. The following are points that are regularly addressed when drafting the contract:
(i). The Law of the State
All parties must agree to follow the specific procedural requirements in order to validate a contract and all steps necessary to complete proper parentage paperwork. It is wise to detail these steps in a contract so all parties have an expectation of what will be required of them.
(ii). Identify Medical Providers
Specifically name the IVF clinic, IVF physician, obstetrician and anticipated delivery hospital.
(iii). Medical Process and Number of Cycles to be Attempted
The contract should contain an overview of the medical process. Parties also generally agree to work together for three (3) embryo transfers for a period no longer than 18 months. The number of embryos to be transferred each cycle is also addressed.
(iv). Medical Autonomy
Surrogacy agreements must balance the Gestational surrogate’s right to medical autonomy, while addressing the Intended Parent’s desire to make medical decisions concerning the fetus. At a minimum, the agreement should detail all health precautions each Party agrees to follow before and during the embryo transfer and after a pregnancy has been confirmed.
(v). Parental Obligations
The Intended Parents agree to accept any resulting children, notwithstanding congenital abnormalities, defects, or health problems. This parental obligation should consist of custody and a promise to support the child regardless of the personal or marital circumstances that exist between the Intended Parents at the time of birth.
The surrogate agrees to surrender all parental rights, if any, and to surrender custody of the child to the intended parents at birth.
(vi). Understanding of Risks Involved and Indemnification
The contract should contain a clause regarding an understanding of the medical and psychosocial risks involved and an indemnification clause to insulate the attorneys and parties from liability.
(vii). Abortion and Selective Reduction
This is one of the most crucial areas in matching surrogates and intended parents. It is imperative to do everything possible to make sure all parties are in total agreement on serious decisions like selective reduction and termination of a pregnancy.
(viii). Payment of Prenatal and Birth Expenses
The agreement will provide that the Intended Parents pay for all out-of-pocket medical expenses of the surrogate. Sometimes the contract provides that the surrogate will be paid a monthly allowance of approximately $200 which will be used to cover co- pays, mileage, and other miscellaneous expenses.
(viv). Compensation
Every agreement should contain a statement that any payment to the gestational surrogate is not payment for the child him or herself, as the child commodification (or baby-buying) is illegal in every state in the United States. Payment provisions should specify the exact amount of payments being made, whether they are contingent on certain events and when each payment will be earned. For a compensated arrangement, the gestational surrogate will often be entitled to base compensation, which is a set fee the gestational surrogate will earn for attempting to carry the child to term. Most agreements provide ten (10) equal monthly payments, commencing at fetal heartbeat and ending at delivery.
Q: What happens if we are using a donor egg or donor sperm?
A: For individuals and couples deciding to have children, sperm donation, egg donation and surrogacy are increasingly popular options. These methods are an effective way to create a family, but certain legal implications need to be understood.
In most cases, when an anonymous sperm or egg donor donates their gametes to an egg or sperm bank, or directly to an IVF clinic, they sign a form releasing them from any parental rights or responsibilities for any child born through their donation. Therefore, when you receive anonymous sperm or eggs from a clinic or gamete bank, the legalities are usually taken care of.
However, if you want to use an egg or sperm donor that you know or one selected by you through a matching entity, you will need to enter into an egg or sperm donation agreement. These agreements are essential because they establish the parties’ intentions and expectations with respect to the donation and, depending on your individual circumstances, the agreement will be important to obtaining a court order securing your legal relationship to your child.
Q: What is second parent adoption?
A: “Second-parent adoption” is when a parent who is not biologically related to the child adopts the child in order to establish or confirm legal parentage. This ensures the parental rights of the non-biological parent are recognized regardless of where the family travels or resides. LGBTQ parents cannot currently rely on recognition of their adult relationships (e.g. marital, civil union or domestic partnership presumptions) as the basis for recognition of their relationships with their children.
“Second-parent adoption” is when a parent who is not biologically related to the child adopts the child in order to establish or confirm legal parentage. The second-parent adoption procedure ensures that the parental rights of the non-biological parent are recognized regardless of where the family travels or resides. LGBTQ parents cannot currently rely on recognition of their adult relationships (e.g. marital, civil union or domestic partnership presumptions) as the basis for recognition of their relationships with their children. Second-parent adoption in Illinois is a very efficient and cost-effective way for parents to establish an independent legal relationship with his or her child that does not depend on recognition of her/his relationship with her/his spouse/partner.
Keeping Hope Alive: My Infertility Journey
In 2009, I married my best friend. Joe was loving, fun, a protector and my perfect match. He loved going out, being social and living in the moment. He was okay to never commit or have children. But that all changed when he met me.
One warm April day I got in a car accident. Joe was the responding officer, and he wrote me a ticket! But Officer Joe saw me in distress and panic, and offered to drive me home. Talking about where I was headed, we quickly learned that we had mutual friends at the restaurant where I worked. Let's just say these friends made this relationship happen.
Over the next few months of dating, I learned Joe had testicular cancer years ago and was already in advanced stages when he found out. He quickly had surgery and started chemotherapy a few weeks later. His family encouraged him to bank his sperm, but his doctor assured him the type of chemo he was using would not affect his fertility. Since Joe always planned to be single and never have children, there was no need to bank. But when he met me in 2005, I told him on our first date that it was my dream to have children. Needless to say, he changed his mind and wanted a child just as much as me.
Fast forward to September 2009: beautiful wedding, perfect life. We decided to start trying for a child in 2010. First month, nothing. Next month, nothing. 12 months later, nothing. We decided to get help. I scheduled an appointment with my ob/gyn and had tests conducted in November 2011 that determined I was not ovulating on time. He also wanted me to have a scan.
Concurrently, Joe's doctor wanted him to complete a sperm analysis. The office called and left a message saying that "everything looked good." During my scan, they determined I had what is called a septate uterus. Which means my uterus had tissue that divided it and that makes it difficult for an embryo to implant. My ob/gyn wanted to schedule surgery to cut the excess tissue out. Joe and I decided we needed a second opinion so we called a fertility specialist.
When we were meeting with the doctor, he turned to Joe and asked for the results of his sperm analysis. Five minutes later, a nurse retrieved our results and our world was rocked. Joe's analysis stated he had ZERO sperm. He wasn't okay. Our minds were blown to say the least. Then he asked us if we were open to adoption because we could never have children. We stood up crying in disbelief and left the office.
After doing some research and talking with my cousin who was an ob/gyn doing her fellowship in fertility, she recommended we visit a urologist and see if there was a way to "go in and get them". After seeing three different urologists over the course of four months, Joe had to start taking injections to prep for the TESE surgery in which sperm is surgically removed. Wouldn't you know in this six month span, our fertility specialist retired? Now we had to find a new one.
We were referred to Dr. Miller at the Advanced IVF Institute by many friends. They talked about everyone from the receptionists, nurses, and doctors. "They work miracles there," they said. Our first appointment with Dr. Miller was in late March of 2012. He looked over our file and said, "We are going to get you pregnant." He prepped us on the schedule of everything, including surgery to remove the septum and coordinating with the Urologist to prep Joe for surgery. Joe and I left the office that day smiling over our infertility struggle for the first time in two years.
In July of 2012, I had my surgery to remove the septum from my uterus. Everything went as planned and we were ready to proceed with ICSI, a type of in-vitro fertilization where a single sperm is injected into an egg. Over the next few months we had countless appointments with both Dr. Miller and the Urologist out of Northwestern. We had to wait for Joe to be at a certain level of testosterone in order to do surgery.
Fast forward a few months, and the doctor stated we were at the highest level he would ever be. It was time to start prepping me for my egg retrieval AND choose an anonymous donor sperm just in case Joe's surgery wasn't successful. Because we knew the TESE surgery was only a 50/50 shot, we had to have donor vials waiting after the retrieval. This was a huge obstacle as Joe was not sure how he felt about using donor sperm.
Over the next few weeks, I mulled through the cryobank checking for common traits and examining the donors’ health records. Finally, I found the perfect one! In April of 2013, my eggs were retrieved in Dr. Miller's office, while Joe was in the next room having TESE surgery.
After we both woke up, Dr. Miller informed us my retrieval was very successful and they retrieved 19 eggs. However, the Urologist did not have any good news. Joe had ZERO sperm, and they believed he may have been born infertile, so the donor sperm was used. Our worlds were rocked again! Days after the surgery, I ended up hyperstimulating and they had to cancel my transfer because of the swelling. However, the good news was we had 14 embryos fertilized. We were informed about the freezing process and discussed that many embryos would not mature normally to the freezing process at five days. We did and ended up with six viable embryos.
The following month, once again I was prepped for a transfer through hormones and many doctors’ appointment. Five days before my transfer I went in for the final check to start the progesterone shots. What the doctor and nurses told me was startling. My uterus was full of fluid and they had to once again cancel my transfer. Two weeks later, I went back to Dr. Miller and he did a quick procedure to ensure the septum wasn't growing back. It appeared that it was, so he once again scraped it out.
Unfortunately, this prolonged the next transfer. We had to wait until October to transfer our frozen embryos. We waited anxiously for the date, and began prep. Our transfer finally occurred on November 2, 2014. Two embryos survived the thaw and were implanted. I was over the moon!
Ten days later, I returned to the office for my pregnancy blood draw. I went to work that day like it was any other day. I knew my nurse usually called me around 1:30 pm with my results from the mornings' tests. At 1:32, my phone rang. It was my nurse and she didn't sound positive... She told me that I wasn't pregnant... I quickly gathered my belongings and called my principal to get me a substitute. Then I ran out of my building and got in my car sobbing and shaking. I called my husband and he assured me it was going to be okay. This just wasn't our time, but that time would come.
The next day, I returned to the clinic for more testing. Again, not pregnant. Joe and I met with Dr. Miller a week later to discuss the failed cycle. Without genetic testing, the most likely reason for implantation failure is a genetically abnormal embryo. We decided that we would try again. Before we did though, he wanted to check my uterus for scar tissue from the surgery. 4 weeks later and another quick procedure, we got the clearance to begin our next cycle. On February 16, 2015, Joe and I entered Dr. Miller's office. We laughed and talked to our nurses and they comforted us in the situation. And then they transferred 2 more embryos while I was put under.
The next ten days waiting to do my pregnancy bloodwork were the longest days of my life. Joe and I were building a house at the time, so we tried to keep ourselves busy. Then on February 26th, I entered the office for my bloodwork. I continued to work as always, but I asked my nurses not to call me until after school. Every five minutes though, I kept checking my phone. The dismissal bell rings at 3:15pm At 3:14, I saw my phone light up... the bell hadn't rung and my students were cleaning up and organizing to leave for the day, but I couldn't miss this call.
I picked up the phone and I heard Patty's voice. "Danielle." I quickly asked her to hold on... the bell rang, I said goodbye to my students and picked up the phone. "Danielle... you are pregnant!" I heard all the nurses on speakerphone yelling and praising our pregnancy and actually felt emotions from each and every one of them coming through the phone. I almost think there were as many tears of joy happening in Dr. Miller's office as I had spewing down my face!
Over the next two weeks, I went in multiple times to assure my hormone levels were rising, and they were. Finally two weeks after we initially found out we were pregnant, we had our first ultrasound to confirm pregnancy and how many embryos took. The ultrasound technician confirmed one embryo implanted, and then we heard the heartbeat for the first time!
Our sweet girl, Elia Meadow, was born in October of 2015, four weeks early. While she had to spend a week in the NICU at the hospital, she was perfectly healthy. We were so in love with our miracle girl.
We are forever grateful for the love and support we received from Dr. Miller and the members of his team. After so many years and tears, his team made our dream a reality. There were so many times we thought we had to give in to our dream of having children, but they kept our hopes alive. Our nurse, Patty, was an absolute dream to us. I truly feel that they are just as excited as Joe and I are to have our sweet little girl. We truly believe that without the help of Dr. Miller and all his staff, we would not have our miracle baby in our arms.
Keep hope in your journey, as Dr. Miller and his team did for us. You too, can share your story one day and give hope to those who are facing infertility struggles. Thank you Dr. Miller, Patty, our nurses, and all of the staff. You have made our dreams come true with our sweet girl!
-Danielle
