The Blessed Trinity And Beyond: Third-Party "Contract" Ions: How To Locate A Potential Surrogate

By Steven H. Snyder, Esq.

I was going to discuss in this newsletter the desirable characteristics and representations of the parties to a third-party reproduction agreement (e.g. - surrogacy agreement). In thinking about those issues, I realized that the first challenge that arises regarding the selection of the parties to a third-party reproduction agreement is actually finding the necessary parties to participate in the process. It is not hard to "find" the intended parents since they are typically the parties seeking the procedure in the first place. It is more difficult, however, to find an appropriate and reliable surrogate to assist the parents. Therefore, this article addresses the issue of finding a potential surrogate.

Once intended parents have decided that third-party reproduction is an appropriate family-building option for them, there are three primary sources for finding a surrogate who is willing to participate. The first source is to have a family member, friend, or co-worker who is aware of the parents' situation volunteer to assist them by gestating their child. The second is to surf the various websites on the internet and find a surrogate who is individually marketing herself to intended parents. Finally, the intended parents can contact a surrogacy agency to find a surrogate that has been identified and pre-screened for suitability by the agency. Each of these options has advantages and disadvantages.

Using a relative, friend, or co-worker has the advantage of going through the process with a person with whom the parents already have a good relationship and, presumably, some baseline level of comfort and trust. This will probably minimize or eliminate the parents' inherent fear that the surrogate will change her mind and want to keep the baby against the parents' wishes. This ongoing relationship will also maximize the likelihood of sustained contact after the child's birth where the surrogate's egg is used in order to monitor the surrogate's developing medical history as it may relate to the child. It is also the situation in which the parents are most likely to find a surrogate who will charge only a modest fee or no fee at all.

However, in order to have a relative, friend, or co-worker volunteer, that person must know of the parents' situation and intent. Not every intended parent discusses such private family issues openly, even with relatives. Even assuming that the parents are actively advertising their situation in order to raise the interest of a possible volunteer, they may not find one. If they do find one, the friend or relative that does ultimately volunteer may not be medically, psychologically, or emotionally suited to participate in third-party reproduction. Substantial screening must take place before this is determined, and, if the volunteer is not suitable, a significant unnecessary delay may occur as a result while the parents look for another candidate. Even if the volunteer successfully passes the preliminary screening, there still exist risks that (1) the surrogacy process may adversely affect the parties' preexisting relationship and/or (2) the parties' preexisting relationship may unnecessarily complicate the surrogacy process. Although there are many success stories involving sisters who have carried babies for their siblings, there are also parents who have regretted using a sister to carry their child because of various negative emotional family issues that have surfaced between the siblings only after the pregnancy has occurred. In addition, using a surrogate who is already part of the parents' social network complicates the issue of the surrogate's post-birth disclosure to and contact with the child, especially for parents who may wish to minimize such contact. Finally, many administrative details must be managed for the process to go smoothly, and one of the parties will have to assume these administrative responsibilities unless they hire an attorney or other entity to do so.

Those parents who are not lucky enough to have a relative or friend who will carry a child for them must look elsewhere for a surrogate. The internet is a wonderful marketing tool and is also useful in this regard. Finding a surrogate who is individually marketing herself on the internet has the advantage of significantly increasing the number of potential candidates that the parents can consider. The parents can then more easily select a surrogate who shares certain physical characteristics with one of the intended parents if that is important to them. They can also select a surrogate who has no prior or ongoing relationship with their family, thereby permitting a more "anonymous" process if that is the parents' preference. The internet also expands the geographic scope of the search for a surrogate, which is especially important for parents who live in a state where surrogacy is limited or banned. These parents can then look for a surrogate in a state where third-party reproduction is permitted. (Remember, the law of the state in which the surrogate resides normally governs the outcome of the process, not the law of the state where the parents reside.) In addition, this type of search allows parents to find a surrogate without incurring the additional fee typically charged by agencies who offer to match them with a surrogate (as discussed below).

With these benefits come certain disadvantages. Surrogates who advertise on the internet are typically in close communication with other surrogates on the internet in various surrogate chat rooms. They are educated on the "market rate" for their services and often charge premium fees for their services (currently around $25,000.00). The motivation for these candidates is usually more financial than altruistic, and this may make the process feel more like a business transaction than warm, cooperative family-building. Furthermore, these surrogates have usually not been screened to determine their suitability for third-party reproduction, so the potential for them to fail the screening and delay the process still exists. If inadequate screening is done, these candidates are the candidates who may most likely "change their minds," even if only to leverage better compensation from the parents. While the parents may want to sever personal contact with the surrogate after the birth, they may want to keep getting medical information about the surrogate. This may be difficult with an individual surrogate since she may be hard or impossible to find several years after the birth if her medical history becomes desirable or necessary. Finally, if the surrogate is in another state, it is challenging to maintain the communication between the parties, arrange the medical procedures, and implement the financial arrangements between the parties. These administrative burdens will fall either on the parents or the surrogate during the pregnancy (while everyone would rather be focusing on the miracle of birth than the business details of the process).

If the parents do not have a relative or friend who will act as their surrogate, they can also locate a surrogate through a reputable agency. This procedure has the same advantages as finding an individual surrogate on the internet without the disadvantages. Parents retain the expanded number and geographic location of the surrogates from whom they can select, and they still have sole discretion to select a surrogate based on their own individual criteria. However, a reputable agency will typically have available numerous pre-screened and suitable surrogates from which to pick, so there will be no unexpected delay. These available candidates are screened to find a reasonable balance between the their desire for compensation and their desire to give the gift of their services to build the parents' family. As a result, they are often available for a more reasonable fee and they are much less likely to change their mind. In addition, once the surrogate is picked, an agency will usually negotiate the terms of and draft the surrogacy agreement on the parents' behalf. Moreover, an agency will arrange and/or manage all of the administrative details of the process, including ongoing communication between the parties, travel and lodging, if necessary, medical procedures, financial arrangements, and post-birth legal procedures. An agency will also stay in communication with the surrogate after the birth in order to monitor and facilitate the continuing exchange of necessary information about the surrogate's medical history, if desired. This allows a buffer between the parents and the surrogate for post-birth privacy purposes where the parents prefer it.

The challenge in using an agency is finding a reputable one. Significant inquiry and research should precede the parents' selection of an agency with which to work. Just as in all professions, there are good ones and bad ones, and the bad ones should be avoided. Another disadvantage of using an agency is the additional agency fee, currently between $16,000-$20,000. This obviously increases the financial burden on the parents in their effort to have a child. Whether the services provided by an agency justify the fee depends on the individual circumstances and perspective of the parents.

NEXT ISSUE: Characteristics and representations of the parties.

(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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