Surrogates and Gestational Carriers

“Doctor, do you think I need a surrogate?” I get this question a lot, and the answer is almost always “No, a surrogate is not necessary”.

Let’s start with a few definitions: a traditional surrogate is a woman who provides the eggs and carries the baby. In other words, sperm is deposited into her uterus on the day of her ovulation and hopefully she conceives and then carries the baby to term. The most famous, or infamous, surrogate was Mary Beth Whitehead. She gave birth to a little girl, who was called Baby M in the court proceedings. She refused to give up custody of the baby, claiming that the baby was her biologic child and so she had a right to keep her. After a huge, very public court battle; custody was awarded to the intended parents with Mary Beth retaining visitation rights. Because of this very ugly incident, many states (such as New Jersey where the court battle took place) have laws banning traditional surrogacy. Even in states where it is not specifically banned, many fertility centers will not provide services for traditional surrogacy because of the risk of the surrogate becoming too attached to the child and the murky legal status of the baby, even when there are contracts in place ahead of time (there was a surrogacy contract in the Baby M case).

A gestational carrier is a woman who carries a baby to term, but does not provide the eggs. She is just the “incubator”. In this case, eggs from another woman (often the intended parent) and sperm are mixed in the lab to create embryos. These embryos are then placed into the gestational carrier’s uterus to hopefully implant and grow. Because the carrier has no genetic relationship to the child, it is believed that the carrier will have an easier time handing over the child and less legal standing in custody battles. The courts, as long as there is a good legal contract, have mainly agreed. Difficulties have arisen when the eggs come from an anonymous donor, as then the intended parent is not the biological mother. When there has been a well written contract, custody usually goes to the intended parent anyway.

So as you can see, this is not something to take lightly. There are definitely very good reasons to use a gestational carrier, but, for most women, it is not the best option. Carriers or surrogates are obviously necessary when the intended female parent does not have a uterus or has a uterus that cannot carry a baby. This does not usually include, however, multiple miscarriages. Please see my previous blog on the subject, but the vast majority of cases of multiple miscarriages have nothing to do with the uterus. Another reason for using a carrier might be a medical condition that would make pregnancy unsafe for mom or baby. Severe lupus with kidney involvement would be an example of a condition that could cause major complications (even death) during a pregnancy. This is something that needs to be decided between you and your doctors. Older age is not a good reason, although it’s the one I get asked about the most. Fertility declines and miscarriage and chromosome abnormality rates climb as women get older. This is due to the age of the egg, however, and not the age of the uterus. Therefore putting the same eggs in a younger uterus, will not chance the outcome. Putting younger eggs into the older uterus will, however, improve all of the above (see blog on age and donor eggs). This is why you sometimes hear about mothers carrying babies for their grown daughters. It’s the daughter’s eggs, which are young, that makes these cycles successful. The age of the mom’s uterus really doesn’t matter. Carriers or surrogates are also used when there is no female intended parent, such as single men or same sex male couples.

If you do need a gestational carrier or a surrogate, there are some things to consider in picking one. First, has she ever carried a baby before? If not, she may not be the best choice. She has no idea how attached you can get to an unborn child that you carry around for 9 months. It may be very difficult for her to let go once the baby is born. If she has had children, how did the pregnancies go? Were there any complications? How is her health? Does she have any habits or conditions that put her at risk for infectious diseases? (e.g., gets tattoos, needs blood transfusions or blood products, has a partner who uses drugs, etc.) Has she had all of her vaccinations (many disease we vaccinate against, like German Measles, can cause birth defects when contracted during pregnancy, and many American and even more foreign-born woman have not had their full compliment of vaccinations.) What is her nutrition like? (vegitarians and vegans, for instance, often have a very hard time getting enough protein and calcium in their diets to support a pregnancy well.) Does she take any medications? Use drugs? Smoke? Drink alcohol? Is she willing to give up caffeine? What is her mental status like? Did she have any problems with postpartum depression with her previous pregnancies? Why is she doing this? Is she reliable? Does she have any religous beliefs that are going to be a problem with any part of the process? Your fertility center will help you with these questions. The fertility center will usually get and review her previous medical records, go through her medical history with her, and order a psychological screening. They will do a physical exam and test for infectious diseases. They will also do special studies to look at the uterus and make sure it’s normal. If there is any question as to her vaccination status, they may order test to make sure that she is immune to things like German Measles.

If you find someone whom you like, the next step is to talk to them about some “what ifs”‘. The first one is “what if it turns out she has twins or triplets?” Would she be willing to carry more than one baby, even if it means being put on bedrest? If she is put on bedrest, will she want more compensation for lost wages? If she ends up with quadruplets or more (which really should be a very remote possibility in this day and age, if the guidelines for how many embryos are transferred are followed), will she be willing to reduce the pregnancy to twins? Will she demand it be reduced to twins, even if you do not want it? Next, what happens if the baby is abnormal in some way? You need to be very frank about whether you would want her to have an abortion or not. There are some abnormalities that are lethal at birth. Would you want her to carry the baby to term anyway? Would she be willing to do that? Another discussion point will be your involvement in her pregnancy. Will you want to go to all her doctor’s visits? Will you and your partner want to be at the birth? Will that be OK with her? Then, of course, there is the money. You need to find out what compensation she wants, who will pay for maternity clothes, and whether her health insurance will cover the pregnancy and delivery (many insurances now specifically exclude maternity care when the insured is a surrogate or gestational carrier).

Once you get through that discussion, it’s time to get a lawyer involved. You will need someone to write up a contract between you and your carrier. She should have her own lawyer review it (someone who is looking out for her interests). The laws vary state to state, so you need someone familiar with your state. There is an association called the American Academy of Assisted Reproduction Technology Lawyers, who can help you find a lawyer familar with these situations. Do not try to get around this part. It needs to be done right. There was a case of a couple who downloaded a contract off the internet instead of paying a lawyer, and it turned out that the contract gave custody to the gestational carrier. Not good!

After that, you should be good to go. Your fertility center will tell you more about the “getting pregnant” part. They can also help you find a gestational carrier, if you do not have anyone that you feel comfortable asking to do it.

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