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    surrogacy

    Things to Know Before Planning For Surrogacy

    • 10712 views
    • 4.5   (1 Votes)
    Medically Reviewed by Dr. Deepika Tiwari - MS, MBBS on 13 Apr 2019 - Written by Dr. Smita Sanyal - MBBS, DGO, Infertility Certification - Grammatically Approved by Dr. Kavita Jaggi Agrawal - MS, MBBS

    Surrogacy is of two types - gestational or traditional. Moreover all types of Surrogacy are not legal in all countries. It is better to work with a surrogate lawyer or an agency to avoid legal issues. Cost, risk, religious issues and requirements of surrogacy are some of the points to keep in mind before planning for a surrogacy.

    The term surrogate or surrogacy originates from the Latin word which means substitute. Surrogacy means using a substitute mother in the place of the natural mother. In other words, surrogacy is the reproductive practice where a woman bears a child for another woman, and after birth, surrenders any parental claims to the child. It is probable that surrogacy has been employed through the ages to help those women who are unable to bear children, themselves, to have families. The earliest example of surrogacy can be obtained from the Old Testament in the Bible (Genesis 16:1-15). For your reference, the story is told, “Now Sarai, Abram’s wife, had borne him no children but she had an Egyptian slave named Hagar; so she said to Abram, "The Lord has kept me from having children. She asks him to sleep with the other woman in order to start their family. Abram did as he was told and at the age of 90 years, he was able to father a child borne by Hagar who gave birth to Ishmael. For some people who previously were unable to have children, including gay couples and women who are unable to get pregnant, surrogacy offers the opportunity to have a child. (1) There are two types of surrogacy arrangements: traditional and gestational. Traditional surrogacy is when the surrogate has a genetic tie to the child she carries. (2) She is artificially inseminated with the sperm of the male intended parent. Due to various legal reasons, traditional surrogacy is not as common or recommended as frequently as gestational surrogacy typically would be. Gestational surrogacy is when the surrogate or gestational carrier, in this case, does not have a genetic tie to the child she is carrying. The intended parents undergo In Vitro Fertilization (IVF), provide the egg and sperm and create an embryo to transfer to the gestational carrier. There are also other circumstances where one of the intended parents will contribute their egg or sperm but a sperm donor or egg donor or even a donated embryo is used in the process. (3)

    In this article, we will look at:

    1. What are the reasons to opt for surrogacy?

    There can be many reasons why a couple might choose to take the route of having a baby through surrogacy. Given below are some of the most common reason:
    a woman is unable to become pregnant or carry a pregnancy because she has had a hysterectomy or is missing part of her uterus, ovaries or other parts of the genital tract.

    • a woman has a health condition that makes pregnancy dangerous
    • a couple in a male same-sex relationship wish to have a child using the sperm of one or the other partner
    • a single man wishes to have a child using his sperms
    • a woman who has frozen embryos in storage dies and her male partner wishes to use the embryos to have a child.

    Surrogates have also made parenthood an option for those who might not be able to adopt a child, perhaps because of their age or marital status. If gay men decide to use a traditional surrogate, one of them uses his sperms to fertilize the surrogate's egg through the process of artificial insemination. The surrogate then carries the baby and finally gives birth. A gay couple might also choose an egg donor, fertilize the donated egg and then have the embryo implanted in a gestational surrogate to carry until the birth of the baby.

    2. What are the recent trend in reproductive tourism and international surrogacy?

    : Ethical Considerations and Challenges for Policy
    The global industry of surrogacy, the phenomenon of women renting their wombs to clients is estimated to be worth approximately $US6 billion annually. When clients cross an international border to engage with a paid surrogate, they are participating in the phenomenon of reproductive tourism, also called “fertility tourism”, “reproductive exile” or “cross-border reproductive care” (CBRC). (4) The phenomenon describes any travel to seek commercially provided assisted reproductive technologies (ARTs), which can include In Vitro Fertilization (IVF), gamete procurement, pre-implantation genetic diagnosis or a host of other services. However, the hiring of surrogate mothers presents particular challenges with respect to risk management, ethics or the building of regulatory frameworks. In India, which is becoming the global champion in providing altruistic surrogacy, which may be worth approximately $400 million annually, generated from the country’s 3,000 specialty clinics. (5) The US is the other great provider of surrogates, with California and New Jersey leading the list of states that are home to surrogate births, each of which produces approximately 100 births per year. (6) Anecdotal evidence suggests that Russia, Ukraine and Thailand are other popular sources of surrogates for an international clientele. While Poland, Mexico, Nepal, and Georgia are quickly gaining similar reputations. (7)

    3. What changes have been made for regulating the international surrogacy market?

    Surrogacy offers promising social and economic benefits and effective regulation of it is feasible and necessary. Although bans on commercial surrogacy may be attractive in developing countries, governments should make a proper regulation, potentially providing life-changing economic benefits to surrogates while protecting the fundamental human right to have children. Only a handful of countries around the world have laws for surrogacy, which are essentially a requirement for surrogacy agencies to set up shop. The United States is one such nation, with eight states codifying regulatory permissions for the process. On average, surrogacy costs eclipse $115,000 in the US, compared to around $40,000 in Ukraine. In the past, couples facing economic or legal barriers in their own country sought surrogates in developing nations like India, Nepal, and Thailand but after a series of accusations and scandals of exploitation by surrogacy agents, these countries have each made it more difficult for foreigners to use surrogacy services legally. The new regulations have compelled them to move to other countries with lower prices and scant regulation. The payments received from surrogacy can help women make long-term economic gains. Large, one-time payments like cash transfers or surrogacy payments are an extremely effective way of improving standards of living. For the surrogates themselves, such payments offer hope in a tumultuous environment. A well-regulated industry should seek to maximize the benefits that women receive from the process while prioritizing stability and safety for all parties involved. The governments should try to implement a price floor in the surrogate market. Auditing firms’ payments to workers are more straightforward than other types of regulation, as it only requires looking through payrolls and bank statements. This regulation could work through the tax collection services of many developing nations rather than requiring them to set up an entirely new regulatory agency. Codified price floors also give surrogates the opportunity for legal recourse if firms attempt to pay them unacceptable amounts. Providing educational materials to women on their rights in civil court would allow them to sue more easily if agencies are found to have breached agreements. It should be the responsibility of developing countries to ensure that women are not coerced into surrogacy and that the psychological effects of the entire process are pre-screened and adequately treated. According to an existing Israeli regulation, physical and psychological tests are mandatory before women can enter surrogacy agreements and they have created a standard for the informed and voluntary consent of surrogates. In Virginia, women are even entitled to legal counsel before they sign surrogacy contracts and in Argentina, a judicial committee must approve agreements. With a bit of legislative gusto and new tax revenue from the market, these precautionary measures can easily become a reality in nations hoping to regulate surrogacy.

    Governments should make sure that the procedures and medical standards are all up to par. In unregulated environments, surrogates are often exposed to harmful practices and multiple successive pregnancies in order to raise success rates. In many countries where surrogacy occurs, firms face no or very fewer penalties for offering shoddy medical care. Monitoring the medical process, outlawing unsafe practices and providing for care after pregnancy can allow for safer surrogacy for all parties involved, helping to maximize the sustainability of the practice. (8)

    4. What are the points one should keep in mind before planning for a surrogacy?

    1. Surrogacy is only for the Wealthy Or Celebrities

    The myth of surrogacy available for the wealthy exists because the cost of surrogacy is almost indeterminable. Surrogate fees and expenses vary substantially depending on several factors such as “Is the mother (intended parent) using her own eggs or will she need the help of an egg donor?” The cost of medical care and health insurance is also a huge factor to consider as there are some insurance carriers that exclude surrogacy, in which case the parents must purchase a policy that is specifically for surrogacy that costs about $30,000. However, there are some surrogate mothers who have excellent health insurance that does not limit or exclude surrogacy – in these cases, there is little or no cost to the parents for any maternity, labor or delivery of their baby. There are also select fertility centers that offer in-house financing, payment plans or cash discounts to assist their patients. (9)

    2. There Are Two Types Of Surrogacy

    Surrogacy can be either Traditional or Gestational. In Traditional Surrogacy a woman provides her own egg, which is fertilized by artificial insemination, she carries the fetus and gives birth to a child for the intended mother whereas in a Gestational Surrogacy a woman or the genetic mother provides the egg, which is fertilized, and the surrogate mother carries the fetus and gives birth to the child. A gestational surrogate or carrier has no genetic connection to the child. (10)

    3. Surrogacy is Not Legal in Some Countries

    Countries such as France, Italy, Germany, Portugal, Spain, and Bulgaria prohibit all forms of surrogacy. In countries like Ireland, Denmark, UK and Belgium surrogacy is allowed where the surrogate mother is not paid, or only paid for reasonable expenses. Commercial surrogacy or paying the mother a fee is prohibited. Commercial surrogacy is legal in some states in the US and countries including Russia and Ukraine. People who are planning for surrogacy may go abroad if their home country does not allow surrogacy, or if they cannot find a surrogate. However, the laws may vary, for example, some Australian states have criminalized going to another country for commercial surrogacy, while others permit it. (11)

    4. Altruistic Surrogacy is accepted in India

    Unlike the U.K., altruistic surrogacy in India is being defined through the tie of kinship, not through the exchange of payment for ‘services rendered’. Here, family and kinship hide the commercial element entailed in seeking a surrogate from among close relatives. According to the new Surrogacy Bill (Regulation) in India, altruistic surrogacy includes contracting a close relative as a surrogate by a heterosexual married couple who have been childless for five years of their marriage. However, altruistic surrogacy also entails the provision that the surrogate is the legal mother of the child, which can be transferred to the parents through a legal process, including adoption. In Europe, the act of gestation defines motherhood, even though the egg used for the pregnancy through In Vitro Fertilization may belong to the couple entering the arrangement. (12)

    5. Working With An Agency Can Actually Save Time And Money

    Surrogacy agencies typically perform various functions that are all geared towards organizing all aspects of the surrogacy journey. This typically involves selection of the surrogate, selection of the carrier, assistance picking an IVF clinic, drafting of legal contracts and arrangement of travel for the various participants. A Master Service Agreement governs the exact nature of the relationship between the parents and their agency. The length of this document usually exceeds more than 50 single-spaced pages. The agency will act as the key liaison between the various parties involved and parents may be required to provide the agency with money up-front that they will hold in trust for them. At any given time, an agency will hold over $50,000 of their funds and the agency will have the power to spend their money in accordance with the master service agreement signed. While it may initially seem more convenient and cost-effective to work with a surrogate independently, it is important to understand the role an agency plays in navigating potential roadblocks. One can only benefit from the preparation and experience afforded by an agency, their expertise can help one avoid pitfalls such as failed medical testing, legal problems and compatibility issues that might otherwise derail the surrogacy journey. (13)

    6. Psychological Evaluations for Surrogates are Required

    The purpose of the psychological screening is to determine if a potential donor or surrogate meets the requirements for being a donor or a potential carrier. The screening is one of many factors that to be considered by agencies and medical personnel in determining appropriateness. Psychological tests are standardized tests and it is optimal that psychological tests are administered in person. They are to be administered by strict criteria dictated by the company that creates and publishes the test. These criteria do not vary from practitioner to practitioner. (14) Recent studies of surrogate mothers have shown that surrogates usually engage in various distancing techniques throughout the pregnancy period so as to ensure that they are not emotionally attached to the baby. (15) Surrogate mothers sometimes intentionally try to foster the development of emotional attachment between the intended mother and the surrogate child. (16) Surrogates who work with an agency are generally counseled by the agency to become emotionally detached from the baby before giving birth. Personality differences between intended mothers who commission a genetically related or unrelated baby and surrogates who gestate and relinquish have been unexplored in the UK. (17) Some surrogate mothers describe feeling empowered by the experience. (18) Although surrogates generally report being satisfied with their experience as surrogates, there are cases in which they are not. Unmet expectations of surrogates are often associated with dissatisfaction, not feeling a certain level of closeness with the couple while others did not feel respected by the intended parents. Some surrogates experience emotional distress as a surrogate mother. There may be a lack of emotional support and access to therapy through the surrogacy process. (19) Some surrogate mothers have reactions that include depression when surrendering the child, grief or even refusal to release the child in rare cases. (20)

    7. Sometimes Surrogacy Can Involve Religious Issues

    Different religions take different methods to surrogacy, often related to their stances on assisted reproductive technology (ART) in general. For example in Catholicism, techniques that entail the dissociation of husband and wife, by the intrusion of a person other than the couple (donation of ovum or sperm, surrogate uterus), are gravely immoral and same is the case with Islam as well. (21) Infertility is a painful reality for many couples. However, assisted reproductive technologies (A.R.T.) are becoming increasingly more popular for infertile couples desperate to conceive. Most Christians have been reticent in asking what boundaries or principles need to be drawn. A recent research study found Americans, including evangelical Christians, largely do not see In Vitro Fertilization and surrogacy as a moral issue and thus do not take a position for or against it. (22) Many individuals described the importance of their own religious beliefs and faith during the decision making process. However, even people who self-reported as “religious” only regarded certain decisions as requiring spiritual guidance, particularly those that the surrogate perceived to be related to life and death. Surrogate decision makers found that surrogates making medical decisions for a close family member or friend often invoke their religious beliefs, especially when facing the end of life decisions. Further study is needed to determine if allowing time and support for religious considerations would improve the quality of medical decisions. Preferences for aggressive or palliative care cannot be anticipated based on the presence of strong religious beliefs. This may be challenging for the clinician as it may require more time and more detailed communication. However, it is worth noting that this mainly occurs when life and death decisions are to be made. (23)

    8. Availability of Surrogate Lawyers

    Parents always have the option of working with a surrogacy agency or not, however, a surrogacy lawyer is a non-negotiable part of completing a successful surrogacy. Surrogacy laws vary greatly from state to state, and pursuing surrogacy without a lawyer’s guidance can quickly saddle with grave legal consequences. In order to protect both intended parents (IPs) and prospective surrogates during this process, a lawyer’s expertise is needed. Before the surrogacy process, it is important to have a surrogacy attorney in the surrogate’s state to make sure that one can proceed with the process legally. An important part of the surrogacy attorney’s services includes drafting and finalizing a surrogacy contract, which must be done before any medical processes can begin. Intended parents and surrogates need separate surrogacy lawyers for this part of the legal process, as their rights and interests must be independently protected to create an equitable surrogacy journey. Filling out a surrogacy contract online may not fulfill all of the necessary parts of a successful surrogacy contract, it must be completed by experienced surrogacy lawyers. A personal surrogacy attorney makes sure that all of the rights and interests are protected, including sensitive issues like termination and selective reduction and compensation. Foreign policies on surrogacy often cause difficulty in obtaining the child. Some of the surrogacy countries usually prefer that the citizens and children remain within national borders. For those that do permit these arrangements, there may be added restrictions such as documents, time frames and official procedures that must be satisfied. At such times, a family lawyer is needed that understands both - how these situations work in one’s own country as well as the country the mother lives in to have the best chances of success. (24)

    9. Citizenship

    Many a time, legal citizenship has been the bone of contention in surrogacy. The Hague Conference Permanent Bureau identified the question of citizenship of children born through surrogacy as a pressing problem in the Permanent Bureau 2014 Study. In countries like the U.S, the U.S. Department of State, Bureau of Consular Affairs, has stated that for the child to be a U.S. citizen, one or both of the child's genetic parents must be a citizen of the U.S. Further, in some countries, the child will not be a citizen of the country in which he/she is born because the surrogate mother is not legally the parent of said child. However, with a lot of experience over the years, the picture has become clearer and ambiguities in-laws are decreasing. One of the landmark cases of problematic transnational surrogacy is that of baby Manji born in 2008 in India. Manji's birth was the result of a commercial surrogacy contract between her Japanese parents and her Indian surrogate. Before Manji's birth, her parents divorced and her commissioning mother refused to claim her. Under Indian law, an infant's passport can only be issued in conjunction with the mother. Since neither her Japanese nor Indian mother would claim Manji, for a brief period, her citizenship was not assigned until her grandmother claimed her. Manji is currently 9 years old happily growing. This was a landmark case as a lot of legal deficiencies were realized and successfully rectified making the system and laws relating to citizenship more clear and standard. (25) (26)

    10. Surrogacy Costs Can Vary

    Surrogacy costs can range anything between Rs. 10,00, 000 and Rs. 16,00,000 lacs. Surrogacy costs in Bangalore and Mumbai can go up to 18,00,000 lacs. The charges for surrogacy are, however, unspecified. The costs can include the IVF process and compensation for the carrier. The cost of transferring an embryo is not expensive; the cost is more so for paying the carrier to carry the pregnancy. (15) Every surrogacy case is unique and involves factors that can impact the overall fees and price. The average cost of surrogacy abroad can range from $90,000 to $1, 30,000 depending on the individual arrangements. In states like California, where surrogates are in high demand, the cost may be slightly higher than other states. However, the cost of surrogacy does not vary greatly between major metropolitan cities such as San Francisco, Los Angeles, Chicago, and Houston. Surrogacy costs vary from country to country, as does the legal requirements and the success rates. Often there are non-standard expenses that can add thousands to the final price. Sometimes these costs are obvious. Other times the costs are more subtle. As surrogacy treatment involves medical, counseling and legal costs, it is inevitably expensive. (27)

    11. Surrogacy Contracts are Real

    The surrogacy contract is one of the most important requirements of every surrogacy process. The contract guides the entire surrogacy journey, clearly outlining each party’s roles, rights and responsibilities before, during and after the pregnancy. When the surrogacy contract is comprehensive and done correctly, it can help limit disputes and miscommunication while protecting everyone involved in the surrogacy process, the surrogate, the intended parents and most importantly the baby. Surrogacy contract ought to be signed before the embryo is implanted in the womb of the surrogate mother. This agreement has to go beyond the amount of money to be paid to the surrogate and at what stages. The contract should include life insurance cover for the surrogate mother. One needs to think of every possibility in the contract - for example, who will take care of the baby in case of the divorce or sudden death of the intended parents? Who will provide for financial support for the child in the surrogacy agreement or mention the name of a trusted relative who can take care of the baby in case of such eventuality? A legally binding contract with the necessary details will hold in the court of law. (28)

    12. Surrogacy Can Result in Multiple Pregnancies

    There is also the issue of multiple births. In surrogacy, as In Vitro Fertilization, there is a good chance that the woman will conceive more than one baby but the maximum allowed is a twin pregnancy. In case there is more than one baby, doctors go for selective embryo reduction, which means if it is a multifetal pregnancy, say triplets or quadruplets, the doctors may abort one or more fetus. The parents and the surrogate mother are made aware of this at the onset and are counseled about it. (29) The instance of multiples in surrogacy is growing and seems more common every year. Many Gestational Surrogates end up carrying twins and even triplets, especially those who complete more than one surrogacy journey. The final consideration in achieving multiple pregnancies is the advancement of IVF technology. Today in the United States, one out of every 100 babies born is from IVF. According to 2006 statistics, more than 120,000 IVF cycles were performed in the USA which is twice as many as a decade earlier. It has been observed that improvements have been made in all the stages of treatment, commencing from the initial stage of induction of ovulation to the final step of embryo transfer. All of these medical advances contribute to better embryo quality and better transfer procedures, all of which contributes to higher success rates in transfers. Even in all of these situations, twins and multiples are not guaranteed, nor is there a guarantee that any embryos transferred will survive to implant and become a fetus, which is why more than one-two embryos are sometimes transferred but when the embryos do survive, a Surrogate and her Intended Parent(s) can be the lucky recipients of not just the family they have always dreamed of, but of an instant larger family and another wonderful bundle of joy to welcome into the world.

    13. Surrogacy May Involve Some Risks

    Although surrogacy, as an ART, offers several advantages and is being performed in some well-known infertility centers, surrogate mothers might face some risks. (30) Some reports indicate that surrogate mothers experience multiple pregnancies, preterm labor, pregnancy-induced hypertension, disturbance of glucose metabolism, and an elective cesarean section that needs specific prenatal care during pregnancy or hysterectomy because of placenta accreta or rupture of the uterus. (31) (32) Moreover, studies have shown that handover of the baby after delivery might cause psychological stress and promote psychological problems in surrogate mothers. The surrogate mothers might form a close bond with the baby in the prenatal period and therefore, might have an increased risk of postpartum depression and feelings of guilt or anger. Surrogacy involves the same medical risks of carrying a child and giving birth. These can include nausea from morning sickness, swelling, weight gain, heartburn, back pain, and other uncomfortable side effects. Some more serious side effects are conditions that can develop during the pregnancy like hypertension, gestational diabetes or potential damage to their reproductive organs. As with any pregnancy, there is also the risk of a preterm labor or surrogacy miscarriage. To reduce these risks, it’s important to keep in close contact with the doctor, take the proper medication, get the right amount of rest and follow their recommendations precisely. In addition to the medical risks of surrogacy, there may be some emotional challenges for potential surrogates to consider. Developing an emotional bond with a baby during surrogacy knowing that you will soon hand her over to another woman can be emotionally challenging and result in confusion, sadness or even anger. During the nine months of gestation, the biological mother bonds with the baby and becomes emotionally attached. For some women, giving the baby up after birth may present a loss too challenging to overcome without friends and families. Professional counseling during and after the surrogacy journey can help to minimize the effect of such emotions.

    To reduce these risks, it is best to work closely with an experienced surrogacy professional who can effectively respond to every challenge that may come in the way. Every case is different, so talk extensively with the doctor, intended parents, and fertility clinic or with any of the family to determine whether surrogacy is right for you. Deciding to become a surrogate is one of the most life-changing decisions a woman can make. Surrogacy is not only an emotionally taxing process, but it also comes with all of the risks and trials of a natural pregnancy with the potential for added complications from IVF and legal contracts. It is important that surrogacy risks are considered seriously before a woman commits to a year or more of fertility treatments.

    Contact Elawoman today at +918929020600 to learn more about your financial options. Elawoman specialized services make it safer, easier and more enjoyable for individuals, couples, surrogates and egg donors interested in this life-changing journey. Let us do the work for you. Call Elawoman today to book a free consultation or to answer any questions you have.

    Dr. Smita Sanyal

    Written by

    MBBS, DGO, Infertility Certification, FImCH
    Laparoscopic Surgeon, Hysteroscopic Surgeon
    Gurgaon

    Dr. Smita Sanyal is an infertility specialist and hysteroscopy surgeon with rich years of experience. She is counted among the most sought-after gynaecologists in Gurugram. She has completed MBBS and DGO from Medical College, Calcutta in 1981 and 1984, respectively. She has also pursued Certificate course on Infertility And Endoscopy from Manchanda Endoscopy Institute in 2013. She is a member of the Delhi Society of Prenatal Diagnosis and Therapy, and Association of Obstetricians and Gynecologists of Delhi (AOGD) and Federation of Obstetrics and Gynecological Societies of India (FOGSI). Her areas of expertise are Normal Vaginal Delivery (NVD), Hysterectomy and Laparoscopic Surgery, High-Risk Pregnancy Care, Intrauterine Insemination (IUI). Dr. Smita Sanyal is an Intrauterine Insemination (IUI) specialist and currently associated with W Pratiksha Hospital in Gurgaon. You can get the contact details of Dr. Smita Sanyal at elawoman.com

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