The term “surrogacy” (medically termed embryo transfer) refers to a legal agreement and process in which a woman agrees to deliver on behalf of another woman or couple. The formalities involved entail the couple seeking to become the intended parents. Surrogate mothers are sought when it becomes impossible for couples to conceive, and when every method the latter has opted to become pregnant has failed.
How Does Surrogacy Work?
Examining the ways in which surrogacy works has stirred multiple queries on how a surrogate mother can become pregnant. One of the most-accepted methods is, therefore, in-vitro fertilization (IVF). This involves aspirating the egg/s from the donor (intended mother). This egg is fertilized with the sperm of the intended father’s sperm or that of a donor from a lab. The IVF procedure for surrogacy includes the following:
- Egg Donation
- Embryo Transfer
|Steps Involved in IVF Procedures in Surrogacy|
|Egg Donation||Extraction of a few eggs from the intended mother (donor).|
|Fertilization||Sperm from the intended father or donor are fertilized with the eggs from the donor or intended mother in a lab to create/form an embryo.|
|Embryo Transfer||The surrogate mother is administered fertility drugs to prepare her for embryo transfer once the embryo is created. This process is usually carried out at the intended parent’s fertility clinic.|
Advantages of Surrogate Pregnancy
The following have been identified as the benefits/advantages of surrogacy:
- Offers a fulfilling experience
- Allows for experiencing pregnancy
- Well protected by legal procedures
- Fair compensation
Fulfilling Experience: Surrogacy offers a definitive answer to couples, LGBTs (Lesbian, Gay, Bisexual, and Transgender), or normal, for whom pregnancy is not possible or safe.
Experiencing Pregnancy: Most surrogates tend to enjoy their pregnancy, which provides them with the opportunity to become pregnant again even if they have a complete family.
Legal Protection: The legally binding contract comprising expectations of both parties is negotiated, and signed before the embryo transfer takes place, making the contents of the agreements visible to the concerned to partake in a smooth surrogacy process.
Fair Compensation: Surrogates are paid a good compensatory amount for this massive responsibility undertaken, which also covers their treatment costs, medications, and relevant procedures needed in prenatal care, including labor and delivery.
Risks In Surrogate Pregnancy and Measures to Minimize Them
Though surrogate pregnancy presents as a highly viable option for many desperate and childless couples, this concept is not spared of the various risks involved there, most of which are related to health, emotional, and legal. aspects.
The embryo transfer, which is the final step in the IVF procedure to facilitate surrogate pregnancy, does consist of significant health concerns involved there. While the common side effects associated with surrogate pregnancy are the same as those present in normal pregnancy, such as morning sickness, general discomfort, swelling of the feet, and soreness, there additionally involve side effects from the medications prescribed to the surrogate mothers.
Apart from these, a surrogate can also come across some serious health risks, such as gestational diabetes, reproductive organ damage, hypertension, and miscarriage. Aside from these, complications specifically related to surrogate pregnancy have also included bleeding, cramping, and infection (typically at the site of the IVF procedure). Having these concerns well addressed by a trustworthy surrogacy program will expectantly help minimize the same.
There is a high likelihood for a surrogate to experience an emotional breakdown because of the baby being handed over to its intended parents once it is born. In this context, it would be appropriate to address the surrogate as gestational surrogacy because the baby she carries in her womb is not and should not be genetically related to her. Emotions and attachments to the baby not biologically related indeed place a surrogate on the dark side. However, they can effectively tackle this by understanding that surrogate pregnancy is not a personal journey and that it involves inputs and feedback from the intended parents throughout the gestational period to the point of delivery and the handing over the baby to its original parents.
The legal risks associated with surrogate pregnancy are as important as the health and emotional risks associated with the same. The most pertinent among these have included a bad or inappropriate surrogacy contract. It is, therefore, important to consider surrogacy contracts that entail minimum legal risks and will be equally beneficial to both the parties involved, i.e., the intended parents and the surrogate. In addition to these, understanding the existing legal procedures involved in surrogacy will help provide the necessary guidance to the concerned.
Legal Procedures Involved in Surrogacy
Three main legal processes are involved when it comes to seeking surrogacy and include the following:
- The surrogacy contract
- Pre-birth order
- Adoption or post-birth legal procedures (if required)
The Surrogacy Contract
The surrogacy contract requires every surrogate and the intended parents to work with their attorneys (lawyers) for drafting and negotiating a surrogacy contract or document. Two major legal issues are covered here, namely Finances and Social Requirements.
Finances: The Finances section of the Surrogacy Contract helps negotiate a surrogate’s base compensations. These will also include adding up extra expenses in case of any complications or when a surrogate is confirmed to carry twins, triplets, or quadruplets in her womb, or if strict bed rest is required.
Social Requirements: In addition to the finances, the basic responsibilities that a surrogate should adhere to, should be included, and this should cover abstinence from tobacco, alcohol, and drugs during surrogacy. Though not all contracts warrant enclosing requirements such as who will present for prenatal check-ups, these are, however, considered important to ensure that everything is going okay with the surrogacy, the surrogate, and the baby/babies she is carrying.
The Pre-Birth Order
The Pre-Birth Order is the next step in documenting the Surrogacy Contract and requires the intended couples to officially establish themselves as the legal parents of the baby born via surrogacy. This process will also include surrogacy-friendly terms so that the concerned couples can confide with their attorneys to file the pre-birth order. It would be worth noting that the pre-birth order does pave the way for the essential expedition of the post-birth legal process during which time, the baby can be discharged to the intended couple.
The pre-birth order (applicable to the USA) also requires the inclusion of specific paperwork intended for the purpose. As such, these include an affidavit, a social document, and paperwork.
|Types of Paperwork inclusive of the pre-birth order|
|Affidavit||Couples should secure a written statement or affirmation by a physician that confirms embryo transfer.|
|Social Document||Requires evaluation of both the intended parents and the surrogate.|
|Paperwork||Should be signed by the surrogate’s family for their willingness to give up of any of the legal rights they have towards the child born via surrogacy.|
Adoption and Post-Birth Legal Processes
Some exceptional cases mandate taking additional steps when a baby is born to a surrogate. At most, these are required when one or the other parent does not genetically relate to the baby. The process called stepparent adoption is sought when the genetic material of one of the parents is combined with the egg or sperm of a donor. If this happens, then either the husband or the wife is expected to adopt a baby genetically related to any of them.
In addition to the legal procedure related to the adoption of the genetic babies from either of the couple, there also exist specific state laws in the US, which serve to favor unmarried same-sex couples to complete a second-parent adoption instead of a stepparent adoption. Note that the need for a full adoption arises when neither of the couples possesses a genetic relationship to the baby born or to be born via surrogacy, wherein they should complete an embryo adoption form.
Acknowledging the fact that there may arise various variables or factors impacting the surrogacy arrangement, it would be advisable to work with an experienced attorney in this regard, where he/she will help with drafting the necessary paperwork to cover every possible outcome.
Factors Affecting Surrogacy Arrangement (Agreement)
The factors affecting surrogacy agreements have, for the most part, included the ethical and legal issues challenging this process.
Ethical and Legal Issues
The lack of proper legislation systems prevalent in countries like India is responsible for placing either the surrogate (mothers) or the intended parents, or both at risk of facing considerable exploitation, thus exposing either or both parties to significant disadvantages. In such circumstances, the profit usually goes to the middlemen and/or the commercial agencies, i.e., the third party.
While these tendencies convey ethical and legal issues, they also denote a lack of transparency in the legal system that deals with surrogacy and post-birth adoption. On the other hand, the ethical and legal issues related to cross-border/international gestational surrogacy have conveyed the legal diversity and ethical background involved in globalized surrogacy practice. Available literature featuring these issues has attempted to provide legal solutions by resorting to minimum legal paperwork for couples who are willing to travel to a foreign country to opt for surrogate pregnancy.
Surrogate pregnancy is a highly preferred option for couples who cannot get pregnant in the least possible manner, either naturally or through assisted reproductive techniques. It offers a highly profitable prospect for surrogates who are selected and are willing to bear the baby through the IVF procedure by embryo transfer. Regarding the benefits and risks of surrogacy, there indeed exists a tie-up between them, with health, emotional, and legal risks presenting as potential risk factors.
However, these can be effectively handled if both the surrogate and the intended parents can actively engage in care programs, understanding each others’ thoughts, feelings, and expectations, where these can be highly facilitated through possessing a sound knowledge of the legal contracts related to surrogacy.