Gestational Surrogacy

By V. Gabriel Garzo M. D., Medical Director
Reproductive Partners-UCSD Regional Fertility Center
La Jolla, California
Assistant Clinical Professor, Department of Reproductive Medicine
University of California-San Diego
La Jolla, California
 

Gestational surrogacy is yet another example of how the development of the techniques of in-vitro fertilization have allowed us to help infertile couples that never expected to become parents of their own genetic child. 

Gestational surrogacy can be defined as the transfer of embryos to the uterus of a woman who is willing to become pregnant for the sole purpose of helping an infertile couple become parents. The surrogate host has no genetic connection with the embryos and does not intend to be the rearing or legal mother of the child. The commissioning parents, who are, most of the time but not always, the genetic parents, will fulfill these roles. Donation of one or both gametes that created the embryos can also be involved.

Surrogacy is clearly indicated as the only possible option for infertile couples to have their own genetic child when the wife's uterus is absent (congenitally or post-hysterectomy), non-functional (congenital malformation or post-surgical scarring) or when the wife has a medical condition that makes pregnancy life threatening. It has also been used in repeated IVF failures, particularly when the embryos are of good quality, and in habitual abortion not corrected by available treatments. 
LEGAL ISSUES 

The legal status of gestational surrogacy varies greatly among different states in the USA. California has "case law" (not codified law) regarding surrogacy, which is made by the courts and constitutes "The Law" in the state. In specific cases that have been presented to them, the courts have upheld the intended parent's rights in surrogate cases, even when there is no genetic connection with the embryo.

The latest of several landmark rulings was given in the California case Buzzanca (1998). In this instance, the intended parents entered an agreement to have an anonymously donated embryo transferred to a surrogate who would carry the child. Six days prior to the birth of the child the intended father filed for divorce and claimed that, since he was not the biologic father, he was not the legal father and could not be forced to adopt. After three years of litigation the courts ruled, that the intended parents, i.e. those who had initiated the whole surrogacy process that created the child were, in fact, the legal parents of the child. 

That ruling expanded the previous one given in the California case Johnson v. Calvert (1993) in which a gestational surrogate wanted to play a rearing role after the birth of the baby. The court held that the woman who intended to "bring about the birth of the child that she intended to raise as her own is the natural mother under California law". This ruling was also explicitly applied to recipients of donated eggs who were recognized as the intended parents. 

Because of this legal background, in California, intended parents can ask for a judgment by a Superior Court naming them as the legal parents of the child in the birth certificate extended at the time of delivery. 

PSYCHOLOGICAL AND SOCIAL SCREENING

Relationships in surrogacy are varied. The host carrier can be a relative, friend or someone with no attachment to the commissioning couple that may or may not receive financial compensation. It can be a direct, person-to-person agreement between the couple and the surrogate, or there may be an agency that not only will find the surrogate but will also coordinate the whole process.

No matter what the circumstances are, candidates for surrogacy should undergo a psychological as well as a social evaluation. In most instances, the social evaluation is performed by the agency.

The objective of the psychological exam is to rule out any psychopathology, assess the personality of the surrogate and is best carried out by a psychologist with experience in reproductive issues. Surrogacy is, by definition, a very unusual situation and requires a very adaptable personality.

The surrogate's motivations should also be discussed. It is crucial that financial compensation not be the main reason for her becoming a surrogate. Not only for ethical reasons, but also because in order to take care of the pregnancy appropriately (24 hours a day for nine months) she has to truly care for the couple and their baby. Pregnancy complications can arise at any moment and require major sacrifices that no amount of money can pay for. Many candidates give, as a reason for wanting to become surrogates, the opportunity to do something life affirming and important for other human beings. Candidates on Medicare should be not approved and the family has to prove financial stability prior to acceptance.

Excluding exceptional circumstances, all surrogates have given birth and parented at least one child. Only then can they give fully informed consent and predict their own behavior as they relate to the intended child. The surrogate's pregnancy will also touch deeply her own family's life and, therefore, she will need their support during the whole process. The evaluation, therefore, should also include her husband and children. Her expectations about her relationship with the prospective couple are also discussed as well as her beliefs on fetal reduction and multiple gestations.

The commissioning couple also needs to be assessed in their general mental health and marital stability. They need to not be overly intrusive and controlling. The couple's capacity to trust and empathize with the surrogate is an important factor in the success of the overall process. The degree of comfort with relinquishing the baby is increased if the surrogate knows that the couple is eagerly preparing for the baby and has bonded with them. The intended parents then meet with the surrogate and her family to get to know each other and to discuss issues such as prenatal care, fetal reduction, finances, envisioned relations, etc. Only then is a legal contract signed to formalize the arrangement the way that all parties understand it.

MEDICAL SCREENING

The medical screening of the surrogate aims at making sure that there are no contraindications to pregnancy and that the physical environment of the baby will be optimal. The surrogate needs to be healthy, less than 35 years of age and have carried at least one pregnancy to term with no complications. Her reproductive system should be normal with regular menstrual cycles, no hormonal disorders and normal uterus and endometrium. 
Standard protocols are used for the stimulation of the ovaries of the genetic mother and preparation of the endometrium of the surrogate. The concept is that the surrogate's endometrium should have been thickened with estradiol 4 or 5 days prior to the expected retrieval day to accommodate for any unexpected change in the stimulation calendar. Our criteria for the number of embryos to be transferred follows the guidelines of the Society for Assisted Reproductive Technology, but the final decision belongs to the surrogate who is the person who would face the risks of a multiple pregnancy.

RESULTS

The chances of pregnancy depend mostly on the age of the genetic mother and on the overall success rates of the program with regular ART techniques. At Reproductive Partners-UCSD Regional Fertility Center in La Jolla, we have performed 25 embryo transfers to a surrogate in the last two years with embryos derived from mothers of different ages. Currently, 15 surrogates either are carrying a pregnancy or have delivered for an overall ongoing/delivered pregnancy rate per transfer of 60%. 
 

Reproductive Partners Worldwide 

Because of the limited availability of advanced techniques like surrogacy, egg donation and even high quality IVF in parts of the United States and the rest of the world, we introduced Reproductive Partners Worldwide (RPWW). The purpose of RPWW is to make the programs and facilities of Reproductive Partners available to couples throughout the United States and around the globe.

Our interactive bulletin board and e-mail communications show that there are unmet needs for couples in other areas. Until now we have tried to meet some of the educational needs through our website and books. In addition to consultations and telephone consultations, we can now also make IVF cycles egg donation and surrogacy more accessible for couples from other locations.

The key to success of this effort is good communications. By utilizing modern communications technology such as e-mail, faxes and the Internet, we will be able to share information with a couple's physician close to home. That will minimize the time required for the couple to be present in one of Reproductive Partners' nationally recognized centers in Los Angeles or San Diego.

Travel arrangements can be made through the patient's travel agent or a special travel consultant to take advantage of specially priced accommodations. An IVF cycle would require female partner to be near one of our facilities from twelve to fifteen days, while the male partner would have to be present for one to two days at the time of egg retrieval.

Although telephone consultations are available, we feel it would be best that the couple have an in-person consultation in order that we may meet face-to-face and perform the pre-cycle semen analysis, semen culture and trial transfer at the time of the initial consultation. The remainder of the pre-cycle testing can be done close to one's home. We will work with the couple's physician to perform these vital tests. If a couple chooses we can offer a telephone consultation and arrange to have the semen analysis, culture and trial transfer done in the couple's home city.

We will instruct the patient's local physician in monitoring the initial portion of the preparation and stimulation phase and request the female partner arrive at a Reproductive Partners facility starting with the sixth day of stimulation. She should plan to stay until the completion of two days of bed rest following the transfer.

To receive a packet of information on the Worldwide program, call (310) 318-3010 or e-mail your address to reproduce@earthlink.net.