Lawrence A. Kalikow, Attorney at Law
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Family Building Through Surrogacy
Although often overlooked and sometimes misunderstood, surrogacy is a viable family building option for many couples and individuals struggling with infertility. Indeed, there are numerous scenarios where a surrogate parenting arrangement may provide the missing component necessary for a successful pregnancy. These include, for example, where the intended mother: has experienced unexplained pregnancy losses; has a diagnosed uterine problem, such as fibroids or endometriosis; has undergone a hysterectomy; was born with a congenital defect affecting her ability to carry a pregnancy to term; has a health condition that contraindicates pregnancy; or, is required to take medication that could be harmful to a developing fetus. Of particular significance to many couples, unlike some family building options, surrogacy allows for a genetic link between the intended parents and the child. That is, depending upon the type of surrogacy arrangement involved, either one or both of the intended parents will usually also be a genetic parent of the child.

There are two basic types of surrogacy: gestational surrogacy and traditional surrogacy. The key difference is that in gestational surrogacy, unlike traditional surrogacy, the woman who carries and gives birth to the child is not the child’s genetic mother.

In gestational surrogacy, typically, the intended father's sperm fertilizes either the intended mother's eggs or donor (usually anonymous donor) eggs via in vitro fertilization (“IVF”). A number of the resulting embryos -- either “fresh” or cryopreserved – are implanted in the surrogate (often referred to as either a “gestational carrier” or “host carrier”) who then carries the embryos to term. Largely because of the need for ovulation induction drugs and the egg retrieval and IVF procedures, gestational surrogacy arrangements are medically more complex and are usually more expensive than traditional surrogacy arrangements. Also, because ordinarily multiple embryos are transferred to the surrogate, gestational surrogacy is far more likely than traditional surrogacy to result in a multiple pregnancy. Due to the rising success of IVF, the separation of gestation from genetics (thereby attenuating the connection between the surrogate and the child) and the increasing availability of streamlined means of establishing legal parentage (such as Pennsylvania’s “Assisted Conception Birth Registrations” procedure), more and more couples and individuals are pursuing family building through gestational surrogacy.

In traditional surrogacy (sometimes also referred to as "classic surrogacy” or “true surrogacy”), the surrogate contributes the egg and conception is usually achieved via artificial insemination. Accordingly, the surrogate will not only gestate the child, she will also be the genetic mother of the child. This type of surrogacy has been practiced for quite some time. Although artificial insemination is a relatively low-tech procedure, most medical practices have long since abandoned intracervical inseminations in favor of intrauterine inseminations. Usually, ovulation is monitored through the use of ultrasounds and blood testing so as to time the insemination(s) with reference to the release of the egg. Unless ovulation drugs are administered to the surrogate, a multiple pregnancy is very unlikely. In order to establish the intended parents' legal parentage with respect to a child born of a traditional surrogacy arrangement, ordinarily stepparent adoption proceedings must be instituted.

In the absence of prohibitory or unduly restrictive legislation (some states actually prohibit surrogacy), surrogacy has been a very successful means of family building. Indeed, few of our social institutions can boast a success rate approximating that of surrogacy. Of thousands of surrogate parenting arrangements that have been entered into nationally, only a small handful (far less than one percent) has resulted in custody litigation between the intended parents and the surrogate mother. This is not surprising. In a very real sense, a properly structured surrogacy arrangement is the ultimate in planned parenthood. Furthermore, throughout the pregnancy the intended parents should be able to have input into important medical decisions concerning the health of the developing fetus and should have ongoing access to medical information relating to the pregnancy. Depending upon the contractual provisions, the intended parents may even be able to select the obstetrician for prenatal care as well as the hospital where the birth is to take place. Also, the intended parents should be able to have access to the child in the hospital following delivery and should be able to have the child discharged from the hospital of birth directly to their custody.

Notwithstanding the foregoing, surrogacy should not be entered into cavalierly. A surrogacy arrangement requires a substantial commitment of time and energy, as well as financial resources. And, as is true of other family building options, surrogacy has its own set of risks. Although those risks cannot be eliminated, they can be substantially minimized by adhering to basic safeguards, including thorough medical and psychological screening and a comprehensive contract, executed prior to achieving a pregnancy, memorializing the intentions and respective obligations of the parties. Also, before embarking on a surrogacy arrangement, it is important to be familiar with the legal landscape of the particular jurisdiction(s) involved.

While surrogacy is not for everyone, it is a highly successful family building option through which many couples and individuals have been able to realize the dream of creating a genetically-linked family.

Lawrence A. Kalikow, Attorney at Law
Warminster Corporate Center
65 W. Street Road, Suite A203
Warminster, PA 18974
Tel: (215) 682-9100

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