The phrase “third-party reproduction” refers to the use of eggs, sperm, or embryos that have been donated by a third person (donor) to enable an infertile individual or couple (intended recipient) to become parents. Donors may be known or anonymous to the intended recipient. “Third-party reproduction” also includes traditional surrogacy and gestational carrier arrangements. Traditional surrogacy refers to a treatment in which a woman is inseminated with sperm for the purpose of conceiving for an intended recipient. The surrogate in this scenario has a genetic and biological link to the pregnancy she might carry. In contrast, a gestational surrogate (also called a gestational carrier [GC] or uterine carrier) is an individual in which embryos created by the intended parents are transferred into the surrogate’s uterus, which has been prepared hormonally to carry a pregnancy. The gestational surrogate has no genetic link to the fetus she is carrying. Traditional surrogacy arrangements often are perceived as controversial with the potential to be complicated both legally and psychologically. Despite the requirement for in vitro fertilization (IVF) to create embryos, the utilization of a gestational surrogate, legally, is a lower-risk procedure and is the more common approach conducted in the United States.
Third-party reproduction is a complex process requiring consideration of social, ethical, and legal issues. The increased use of egg donation has required a reconsideration of the social and ethical impact this technology has had on prospective parents, their offspring, and the egg donors themselves. Surrogacy has been acknowledged within the reproductive-medicine community as well as by the American Society for Reproductive Medicine (ASRM). Surrogacy arrangements nevertheless remain controversial and are subject to both legal and psychosocial scrutiny. This booklet will discuss the options for third-party reproduction, reviewing sperm donation, egg donation, embryo donation, and both traditional surrogacy and gestational surrogacy.
Surrogacy is both a medically and emotionally complex process that requires careful evaluation by medical professionals, MHPs, and legal professionals to ensure that the procedure is satisfactory for both the surrogate as well as the intended parents. A surrogate is a woman who carries a pregnancy for another couple or woman. There are two types of surrogacy arrangements: traditional surrogacy in which the surrogate is inseminated with sperm from the male partner of the intended parent couple (donor sperm may be used as well) and gestational carrier (GC) in which the surrogate carries a pregnancy created by transferring an embryo created with the sperm and egg of the intended parents (donor sperm or donor eggs may be used as well). A GC has no genetic relationship to the child.
Much of the conflict surrounding surrogacy is a result of issues surrounding the legality of binding agreements agreed to prior to the conception or birth of a child. Traditional surrogacy is, therefore, an approach that carries more legal risk. As such, the majority of surrogacy conducted in the United States involves the use of a gestational carrier.
The initial indication for use of a GC is a woman who has normally functioning ovaries but who lacks a uterus. Women with congenital absence of the uterus (müllerian agenesis) or prior hysterectomy due to benign or malignant conditions are obvious candidates. Women with congenital müllerian anomalies such as a T-shaped or hypoplastic uterus with a history of infertility or repetitive pregnancy loss also are candidates, as are women with untreatable intrauterine scar tissue. A gestational carrier also is an appropriate treatment for women with a medical contraindication to pregnancy. Examples of medical conditions that may prompt the use of a gestational surrogate include severe heart disease, systemic lupus erythematosis, history of breast cancer, severe renal disease, cystic fibrosis, severe diabetes mellitus, and a history of severe pre-eclampsia with HELLP syndrome (Hemolysis, Elevated Liver enzymes, and Low Platelet count).
Gestational carriers may be known to the intended parents or may be anonymous. Known GCs are typically relatives or friends who volunteer to carry the pregnancy. Anonymous GCs are identified through agencies that specialize in recruiting women to become a GC. The GC should be a minimum of 21 years of age and have delivered a live-born child at term. The use of a GC of advanced age is particularly challenging. The obstetric complication rate, especially the incidence of pregnancy-induced hypertension or gestational diabetes, is much higher. Certainly, evaluation of a woman’s overall health and appropriate screening for underlying medical conditions that might complicate a pregnancy, as well as counseling regarding the obstetric risk, should be performed if considering an older surrogate.
The intended parents should undergo a complete medical history and physical examination. Semen analysis should be obtained for the male partner, and an evaluation of ovarian function should be performed for the female partner.
The GC should undergo a complete medical history including a detailed obstetric history, lifestyle history, and physical examination. The GC should have an evaluation of her uterine cavity with hysterosalpingogram, sonohysterogram, or hysteroscopy.
Infectious-disease screening for syphilis, gonorrhea, chlamydia, CMV, HIV, and hepatitis B and C should be performed on the intended parents and the surrogate. The GC also should be screened for immunity to rubella, rubeola, and varicella. In addition, her blood type should be noted.
Counseling of GCs is intended to provide the GC with a clear understanding of the psychological issues related to pregnancy. With the assistance of a MHP, the gestational surrogate and her partner should explore issues such as managing a relationship with the intended parents, coping with attachment issues to the fetus, and the impact of a GC arrangement on her children and her relationships with her partner, friends, and employers. The intended parents should be counseled regarding their ability to maintain a respectful relationship with the surrogate. The surrogate, the intended parents, and the MHP also should meet to discuss the type of relationship they would like to have. In addition, expectations they have regarding a potential pregnancy should be discussed. This includes a discussion of the number of embryos for transfer, prenatal diagnostic interventions, fetal reduction, and therapeutic abortion, as well as managing the relationship while respecting the carrier’s right to privacy.
There are a number of legal issues that concern third-party reproduction. Written consent should be obtained for any procedure. In situations of known sperm or egg donors, both donors, as well as intended parents, are advised to have separate legal counsel and sign a legal contract that defines the financial obligations and rights of the donor with respect to the donated gametes. With embryo donation, in view of the absence of any statute defining the rights and responsibilities of any party involved, it has been suggested that a pre-donation agreement be obtained and a judicial determination of parentage be obtained prior to the donation taking place. With GC arrangements, legal contracts, in addition to delineating financial obligations, may include details regarding the expected behavior of the GC to ensure a healthy pregnancy, prenatal diagnostic tests, and agreements regarding fetal reduction or abortion in the event of multiple pregnancies or the presence of fetal anomalies. Finally, many states allow for a declaration of parentage prior to the child’s birth obviating the need for adoption proceedings. The laws regarding third-party reproduction are either non-existent or different from one state to another. Thus, all couples are advised to consult with an attorney knowledgeable in the area of reproductive law within their individual states.
All potential donors and recipients also should be cautioned that laws may change and anonymity cannot be guaranteed for the future. There are strong movements to eliminate anonymous donation in many countries, and several no longer permit it.
The options available through third-party reproduction provide many couples the opportunity to make their dream of parenthood a reality. The comprehensive nature of the screening and counseling of intended parents and their donors or surrogates ensures that the process meets the needs of all involved. Finally, as third-party reproduction is more widely used, there continues to be a broader understanding of the ethical, moral, and legal issues involved. The ultimate goal of physicians, MHPs, and attorneys specializing in reproductive law is to enable this process to move forward as smoothly as possible and bring joy and satisfaction to all parties involved in ensuring the conception and delivery of a healthy child.
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