Starting your Surrogacy Journey: Getting Clearance
More than ever, people are turning to assisted reproductive technology to build their families. One such path is by working with a gestational carrier who will carry an embryo not genetically related to them for the intended parents, commonly referred to as ‘surrogacy.’
For the fertility clinic to proceed with the embryo transfer to the surrogate, the parties must receive medical, psychological, and legal clearance.
As each state has its own laws related to surrogacy, and people are turning to surrogacy across state lines and matching independently without agencies, it is paramount to understand the clinic requirements and your specific state laws.
Interested candidates for surrogacy will undergo medical screening at a fertility clinic to be approved to be a gestational carrier. The surrogate may complete such medical screening before matching with a family, such as through the agency they are working with, or they may do so once they have found a family to work with and are already matched. Such medical screening includes review of prior medical and social history, a physical examination, blood work, drug screening, STD and infectious disease testing, and genetic testing. Such testing varies based on the type of embryo the intended parents plan to use, such as from donated material or their own. This process can take several weeks depending on the surrogate’s schedule, the clinic, and the status of the genetic material. Though the U.S. Food and Drug Administration (FDA) does not require screening or testing of surrogates like they do for egg or sperm donors, it is standard practice for fertility clinics to require the surrogate to complete medical screening and testing prior to proceeding in a surrogacy arrangement.
The fertility clinic will require the surrogate to complete psychological counseling prior to proceeding and is likely to require the intended parents to undergo counseling as well. A common test used in the psychological evaluation of a surrogacy candidate is a Personality Assessment Inventory (PAI). The PAI is a tool that psychologists use to help diagnose clinical disorders and screen for psychopathology in clients by looking at things like anxiety, stress, alcohol or drug concerns, treatment rejection, aggression, dominance, warmth, inconsistency, and negative/positive impressions. The surrogate’s spouse will also be involved in any counseling. It is not uncommon for the surrogate and their spouse to have counseling, for the intended parents to have counseling, and then for all parties to meet together with a counselor to discuss the planned surrogacy arrangement. Though counseling may not be required beyond this point, parties may elect to work with a therapist as they go through the surrogacy process and once a child is born as well to help navigate the mental health aspects of their surrogacy arrangement.
Fertility clinics rely on guidance from the American Society of Reproductive Medicine (ASRM) in setting the standard for such medical screening and psychological counselling, such as in their ‘Recommendations for practices using gestational carriers” published on July 1, 2022. You can find other ASRM guidelines here and statistics and resources on Assisted Reproductive Technology from the Centers for Disease Control and Prevention here.
The parties will negotiate and sign a Gestational Carrier Agreement prior to moving forward in their surrogacy journey. The gestational carrier (and their spouse if applicable) and the intended parents will have their own independent legal counsel to help them navigate the complexities of the Gestational Carrier Agreement. The Gestational Carrier Agreement will contemplate state-specific parentage and relinquishment of rights, the genetic material used for the surrogacy, aspects of required medical and psychological screening, the process of embryo transfer, compensation and reimbursement, insurance aspects, communication between the parties, and more. Once all parties have signed the Gestational Carrier Agreement, the attorneys will provide the fertility clinic with legal clearance for the parties to proceed with the embryo transfer to the surrogate as articulated in the Gestational Carrier Agreement. Without providing legal clearance, often in the form of a Legal Clearance Letter to the clinic from both or one of the attorneys, the clinic will not proceed with the embryo transfer for the surrogacy process.
As the laws surrounding assisted reproduction are state specific, and federal regulation, policy, and case law continue to change the legal landscape of reproductive health, it is imperative to work with an attorney that specializes in reproductive law in your state. You can find a knowledgeable and trusted attorney specializing in reproductive law in your state through the Academy of Adoption and Assisted Reproduction Attorneys directory here.
Please reach out to our Reproductive Law group to learn more about assisted reproduction laws and how to navigate the surrogacy process.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.