A Legal Foundation For Your Family

Characteristics Of A Good Surrogate

By Steven H. Snyder, Esq.

My last article discussed sources that you can use to locate a potential surrogate, including friends and family, the Internet, and reputable agencies. This article will discuss what characteristics you should be looking for in your prospective surrogate once you find her.

There are several areas of qualification that you must consider. You should evaluate the surrogate’s motivation, her support system, her past and present health and social history, her physical ability to successfully achieve a pregnancy, and her psychological and emotional outlook and stability.

Surrogates are motivated to assist infertile couples in building their families for a variety of individual reasons, but they generally fall under two general categories, altruism (the desire to do something good for someone else) and compensation. While it would be nice if every surrogate were willing to help people only out of the goodness of her heart with no compensation, this is not often the case. Other than close friends or family members, most surrogates expect to be reasonably compensated for the very real services that they will perform for the intended parent(s). These women understand that the proposed pregnancy will tangibly affect their lives and the lives of their own family members in both positive and negative ways.

An informed surrogate will understand that she will have to interrupt her family and work schedules to attend medical appointments and undergo fertility drug protocols and implantation procedures, perhaps multiple times. She will also be keenly aware that she will be subject to all the health risks, discomfort, limitations, and pain of pregnancy and delivery. If the implantation results in a multiple pregnancy, she may be required to go on bed rest, becoming completely unavailable to her own family and employer. The predictable time demands and very real health risks of a surrogacy program certainly justify some compensation, and most unrelated surrogates expect reasonable payment for their services.

Psychologists and other professionals who have worked with and evaluated surrogates have generally concluded that the most reliable surrogates are those who are motivated by both altruism and compensation, with the preferred emphasis on altruism. If a surrogate is poor or greedy and motivated only by money, it is more likely that she may manipulate the pregnancy and ultimate custodial issues, perhaps by threatening to keep the child after birth, to receive maximum compensation. Therefore, it is important that the surrogate is also meaningfully motivated to do good, not just earn money.

Even if the surrogate is acting purely out of altruism, she may experience some sense of postpartum deprivation when she gives birth and delivers the child to its intended parents. The surrogate’s receipt of adequate compensation for the benefit of her own family gives her something positive on which to focus and helps reduce the risk that she will unexpectedly respond to any possible twinge of deprivation by wanting to keep the child. As a result, a strong sense of altruism coupled with a reasonable desire to be fairly compensated is the best motivational combination in a surrogate.

To insure this proper balance of motivation, you should verify the source of the surrogate’s desire to help, whether it is because she knows a friend or family member who has experienced the frustration of infertility or loves her children so much that she wants to help others experience the joy of their own family. You should typically avoid surrogates that are on public assistance, in financial crisis, or have a criminal history of fraud by check, solicitation, or other “get money quick” behavior. Finally, you should also openly discuss the issue and amount of compensation that the surrogate expects to receive to be sure that it is reasonable and matches your ability to pay.

In order to successfully manage the psychological and emotional aspects of a surrogate gestation, the surrogate must have a positive and supportive personal environment. If she is married or has a significant other, it is important that person is supportive of the surrogate’s intentions, able to experience the limitations and results of the pregnancy without regret or any desire to keep the child, and not improperly motivated only by the compensation the surrogate will receive. Although not necessarily as important, it is also desirable that the surrogate’s parents, siblings, and other close family members and friends at least understand and accept her desire to be a surrogate. The more emotional and psychological support the surrogate has, the more stable and reliable she will be. Therefore, identifying and selecting a surrogate with this positive support system is also highly desirable.

The surrogate’s suitability will also depend on her health and social history. You should look for a surrogate who is in good health and has no physical or mental condition that would jeopardize her or the child’s health or impair her ability to successfully carry and deliver a healthy child. Issues such as her and her family’s overall health history, her personal sexual behavior and history of sexually transmitted diseases, significant history of depression or other mental conditions or treatment, criminal record, and personal habits such as tobacco, alcohol, and drug use are among many important areas of inquiry. It is obviously desirable to select a surrogate who has no issues or concerns in any of these areas and whose personal health habits are reassuring to, rather than stress inducing for, the intended parents.

One of the most important qualifications for a suitable surrogate is her ability to successfully and safely become pregnant and deliver a child. The best indicator of this ability is the previous successful delivery of one or more of her own children. Without this indicator, you cannot be certain that the surrogate does not have her own fertility issues. Choosing a surrogate who has not had children before not only raises the question of whether her uterus can successfully carry a pregnancy to term, it also brings into doubt whether she has a sufficient understanding of the physical and emotional aspects of pregnancy to safely and reliably commit to bear a child and then happily relinquish its custody to the intended parents. This possibility that the surrogate may change her mind because she did not fully understand the emotional aspects of pregnancy in advance is perhaps every intended parent’s biggest fear. Thus, it is critical to select a surrogate that has successfully delivered her own children.

All of the foregoing factors bear strongly on a surrogate’s ability to follow through cooperatively with the intent of a surrogacy agreement. They are also all part of the surrogate’s psychological and emotional make-up. The surrogate’s overall psychological and emotional health are also critical to the success of a surrogacy program, and every surrogate should be psychologically screened and “approved” by a licensed psychologist who is qualified and experienced in third-party reproduction issues as a suitable participant in a surrogacy program. This screening is a significant part of verifying the presence or absence of the other characteristics discussed above.

Notwithstanding this advice, you should remain aware that there are no tests or combinations of character traits or habits that can predict any person’s behavior with absolute certainty. No psychological screening or background investigation is a 100% indicator of success or reliability. Such efforts simply evaluate general traits and tendencies. The more experienced and skilled the evaluator or investigator is, the more reliable the screening may be, but it is still not a guarantee of complete suitability. There always remains the risk of the unknown and unknowable.

Nevertheless, if you carefully select a surrogate with the foregoing considerations and qualifications in mind, your chances of success are high. Informal statistics regarding the outcomes of surrogacy agreements in the U.S. indicate that, out of the approximately 15,000 surrogacy agreements implemented through the end of the year 2002, only 89 resulted in actual disputes between the parties. Of the disputes, only 27 were caused by a surrogate who threatened to change her mind (often to leverage better compensation). The rest were caused by intended parents whose circumstances had changed unexpectedly (divorce, job loss, etc.) so that they no longer wanted accept the child. This is a success rate of more than 99.5%. Therefore, contrary to popular belief, entering into a surrogacy agreement with a properly motivated, screened, and well-matched surrogate is a very reliable alternative for family building.

(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:

Snyder Law Firm
11270 86th Ave N
Maple Grove, MN 55369-4510
[email protected]

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