By Steven H. Snyder, Esq.
I have previously discussed how to locate a potential surrogate and what general characteristics she should possess. This article will discuss the more sensitive and potentially controversial issue of the screening and qualification of intended parents who want to participate in third-party reproduction. This topic touches upon legal, psychological, and medical issues as well as broader matters of public perception and opinion.
Let's start by addressing the issue of public opinion. Since I have helped draft and lobby state legislation in this area for the last two years, I am intimately aware of the many disparate opinions that legislators and their constituents have in this area. On one end of the spectrum are those who believe that no one should be allowed to use third-party gametes or wombs to help create a family. On the other end of the spectrum are those who believe that anyone should be able to have children in any way possible, including third-party assisted reproduction, without any limitations or regulations. Even those who accept the use of third-party assistance in family building are divided. Some believe that only married heterosexual couples that have been pre-qualified through a home study (as in an adoption) and who absolutely cannot have children in any other way should be allowed to use this process. Others believe that anyone, including, but not limited to, fertile heterosexual couples, single persons, same-sex couples, etc., should be allowed to build their families in this manner without qualification or regulation.
There is no single response that neutralizes public opinion, and there is no right or wrong solution to the many differing views that exist about this issue at this time. The reality is that the only opinion that should really matter to anyone considering third-party assisted reproduction at this time is his or her own opinion. If you are comfortable with and accepting of the concept of third-party assisted reproduction and willing to accept all of its inherent ramifications, then you should move forward in investigating it as a possible means of building your family if you desire to do so.
At this time, the legal environment is as varied as public opinion. Remember, it is the law of the state in which the surrogate lives and/or delivers the child that governs the legal determination of parentage and enforceability of the surrogacy agreement. Since every state has different legislation, an intended parent is only as suitable as the applicable law allows. In some states that allow surrogacy agreements, only certain types of intended parents are allowed to enter into enforceable surrogacy agreements (e.g.-married couples). In other states, surrogacy is legislatively banned and no one is deemed to be a qualified intended parent. In most states, as in Minnesota, there is no legislation at all, so there are no express limitations on who can use a surrogate to build a family. Subject to the uncertainty as to the legal enforceability of surrogacy agreements in Minnesota because of the absence of applicable legislation or case law, anyone can enter into a surrogacy arrangement as an intended parent in Minnesota at this time.
Notwithstanding the absence of formal restrictions on which persons can participate as intended parents, there are, nonetheless, certain practical considerations. For example, a person's age, health, income, family circumstances, and prospective care plan for raising the child all bear on how successful and appropriate his or her family building efforts will be. After all, surrogacy is a necessarily cooperative process that should be implemented in a way that is healthy and appropriate for all the participants. This should include not only the intended parents, but also the surrogate and the intended child. However, since none of these considerations prevent anyone from having a child through natural, unassisted means, many people believe that they should not be considered in determining the propriety of an intended parent's participation in third-party reproduction, either. This is also a matter of widely varied opinion, and, once again, the only opinion that matters under the present legal circumstances is the opinion of the prospective intended parent.
Notwithstanding the absence of formal legal restrictions, there are both formal and informal guidelines for third-party reproduction already existing and being further developed by certain professions and the groups that govern them. The American Society of Reproductive Medicine (ASRM), for example, has national ethics and practice committees that consider and propose guidelines for responsible practice in reproductive medicine. There is also the Society for Assisted Reproductive Technology (SART) that has similar committees and guidelines. Responsible infertility clinics across the country generally voluntarily follow the ethical and "prudent practice" guidelines promulgated by these various committees, although there is no formal policing or enforcement mechanism that ensures compliance.
There are also numerous assisted reproduction agencies that facilitate surrogate and sperm and egg donor programs. Each of these agencies has its own program requirements and qualifications. These programs have no national organizational or regulatory committees, and their practices vary widely from one to another. Two primary factors enter into the restrictions on and/or qualifications for intended parents that each agency imposes. The first is the personal conscience (or lack thereof) of the person(s) who run these agencies; the second is the various liability issues that arise as occasional lawsuits are brought against such entities for negligent or questionable practices. For example, one agency was successfully sued by a surrogate for failure to adequately screen a single intended parent who received custody of and subsequently abused the resulting child. As a result, many such agencies also impose certain qualifications and screening procedures on all intended parents who wish to use their services.
Because of these various advisory committees and factors, there are a wide variety of requirements and practices among infertility clinics and assisted reproduction agencies across the country (and throughout the world) regarding who may participate in third-party reproduction. Some clinics and agencies require psychological testing and approval of intended parents as well as surrogates, specifically including administration of an MMPI-II personality inventory and an in-person evaluation by a qualified psychologist, while others do not. The application of these guidelines obviously affects who the participating professionals deem "qualified" to participate in third-party reproduction as an intended parent, although there is no more actual consistency in this area than in the legal area.
Even though the qualification processes vary, however, there are certain common psychological and emotional issues that bear on third-party reproduction. Among others, each intended parent must be willing to involve and comfortable with involving a "stranger" in one of the most intimate and personal events of his or her life. Furthermore, each intended parent must also be able and willing to accept and raise as their own a child who may not be genetically related to (1) him or her or (2) his or her spouse. Finally, because the gestation and birth of a child is inherently unpredictable, each intended parent must be flexible and willing to accept the child(ren) born as a result of the pregnancy regardless of their number and physical or mental condition. After all, this is the birth of the intended parent's child, and acceptance of that child is not and should never be conditional.
Every intended parent must be comfortable with and properly prepared for such issues before participating in third-party assisted reproduction. It is obvious that these issues are best evaluated and addressed through an appropriate psychological screening of some degree. Although such screening is not required for those who become parents without medical intervention, it is prudent in third-party assisted reproduction. It may seem unfair, and it may actually be unfair, but all responsible participating professionals agree that it is necessary.
(This article is not intended as legal advice and should not be relied upon as such. Each family and agreement is unique, so you should hire a competent attorney to advise you specifically about your particular case.)
Mr. Snyder is an attorney experienced in assisted reproduction and surrogacy law. If you have questions or issues that you would like him to generally address in future issues, you may contact him at:
Steven H. Snyder, Esq.
Snyder Law Firm
11270 86th Ave N
Maple Grove, MN 55369-4510
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