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5 Vitally Important Things to Know About Using a U.S. Surrogate

a blog by Rhonda Levy, March 13, 2014

If you are thinking about traveling to the US for surrogacy, you are likely living in a country that has passed laws prohibiting "commercial" or "compensated" surrogacy, or one that has passed laws prohibiting surrogacy outright, including on an altruistic basis. You may be living in a country in which "commercial surrogacy" is legal, but denied to members of the LGBT community, of which you are a part. If you find yourself in this position and are thinking about traveling to the US to form your family, here are five vitally important things you need to know:

  1. You will need to choose lawyers both in the US and in your home country who will help you understand the laws that will govern your baby's legal parentage, nationality and immigration status, and the process you will go through following your baby's birth to establish your status as a family. There are hundreds of lawyers throughout the world who practice in the field of third party reproduction law but, as with all professionals, some have vastly more experience than others. To ensure the quality of the legal advice you receive, it will be important for you to choose reputable lawyers who are deeply immersed in this area of law in both countries, rather than lawyers with limited experience in the field.
  2. You will need to choose a fertility clinic located in the US, where more than 450 fertility clinics exist. You will be well served if you make this choice with an understanding that there is a disparity in the quality of American fertility clinics, and that only some of them have the ability to maximize the likelihood that your gestational carrier will become pregnant. You can attempt to identify a top performing US fertility clinic by reviewing individual fertility clinic success rates, which are publicly available. However, recent changes in the approach to care by fertility clinics in the US have made interpretation of publicly available fertility clinic success rates virtually impossible. In addition, individual fertility clinic success rate reports do not separate out IVF cycles involving gestational carriers with or without donated eggs. Given that your choice of fertility clinic can make all the difference in whether you will or will not reach your goal of having a baby, you may want to seek direction and guidance so that you can choose a high quality fertility clinic with vast experience working successfully with gestational carriers. This will improve the likelihood that your gestational carrier will become pregnant the first time your embryos are transferred to her uterus.
  3. Next there is the matter of choosing a surrogacy agency. While some American surrogacy agencies have existed for close to two decades, in recent years a shocking number of new surrogacy agencies have emerged in the US. Some are highly professional and screen and match their gestational carriers in a rigorous manner conducting, among other things, extensive psycho-social evaluations. On the other end of the spectrum, however, are surrogacy agencies that place all parties at risk, never speaking with their surrogates, and relying exclusively on applications that have been submitted online. In the middle are surrogacy agencies that conduct some screening, but do not screen as comprehensively as possible. Given that your surrogacy agency will play the important role of helping you find the woman who will carry and nurture your baby, you would be well advised to take the time to learn about "best practices" in surrogacy agency screening, matching and support before choosing the agency you will work with.
  4. If, in addition to a gestational carrier, you also require an egg donor, you have three possible avenues through which to find one in the US and should learn about their pros and cons so that you can make the choice that best suits your needs. Your first option is to seek assistance from a fertility clinic, many of which recruit and screen egg donors whose profiles they present to patients on an anonymous basis. Your second option is to turn to an egg donor agency. This approach would be advisable if you are looking for an egg donor who has characteristics that are difficult to find, if you would like to meet your egg donor, or if you wish to identify an egg donor who will agree to reveal her identity to your child when he or she reaches age 18, should that be your child's desire. As is the case with American surrogacy agencies, the number of egg donor agencies has multiplied dramatically in recent years. Some operate at a high standard, while others leave much to be desired. Once again, you must take the time to learn about "best practices" in the world of American egg donor agencies before you choose one to help you find your egg donor. Understand what you should expect in terms of rigorousness of donor evaluation, selectivity, service and the quality of an egg donor agency's donor pool. Your third option is to turn to a frozen egg bank. Frozen egg banks are similar to frozen sperm banks, which have existed for decades. They were made possible relatively recently when, in October 2012, the American Society for Reproductive Medicine (ASRM) removed the "experimental" label it had placed on egg freezing in 2008, and emphasized that in young women the outcome with egg freezing is comparable to the outcome in IVF cycles using fresh eggs. There are pros and cons to finding your egg donor via each one of these three methods - via a fertility clinic, an egg donor agency or a frozen egg bank. You owe it to yourself and your future child to understand the advantages and disadvantages of finding your egg donor via each avenue before deciding how you will proceed.
  5. Finally, you will need to understand the insurance issues surrounding the process of having a baby in the US with the help of a gestational carrier. Simply put, insurance coverage will be required for the gestational carrier's pregnancy and delivery, and for your newborn upon its birth. You must be careful not to assume that you will receive this coverage due to health care reform under the 2014 Affordable Health Care Act. There is a lot of uncertainty at present regarding whether even a US citizen's surrogacy will be considered an "essential health benefit" within the "maternity and newborn care" category under the ACA. As a foreign citizen you must be particularly careful not to assume that you can count on this coverage. Both you and your gestational carrier should each seek the advice of third party reproduction lawyers who thoroughly understand the current environment regarding insurance coverage in surrogacy scenarios especially those involving Intended Parents who are travelling to the US from foreign countries. It is important that you take all of the necessary steps to obtain protection against any of the risks that may occur.

Comments (2)

Hi Trish. Thank you for your excellent comment, which supports my emphasis on the importance of seeking advice from an attorney who has a thorough grasp of the issues. As is the case with all professionals, some lawyers are more informed than others. Intended parents and gestational carriers (surrogates) might want to consider seeking the advice of reproductive lawyers who have been admitted into the prestigious American Academy of Assisted Reproductive Technology Attorneys (AAARTA) as admittance is by application only. Applications are subject to careful review, and invitations to membership are extended only after a due diligence investigation and approval by a Board of Trustees. Turning for advice to qualified insurance brokers and agents, as Trish suggests, is also an excellent idea. In all cases, whether advice is being sought from a lawyer or an insurance professional, the emphasis should be upon the extent to which they are informed and qualified to provide the needed advice.

Hello Rhonda, One of our team members found your blog message and forwarded it to me and our company. We all want to thank you for the information regarding ACA and how it may affect surrogates and Foreign Nationals. However I can tell you attorneys do not know half as much as a licensed state broker or agent insurance professional, too much authority has been given to surrogate attorneys and agencies regarding insurance and most are not serving and educating surrogates and IP's appropriately. Misinformation is worse than no information. We can tell you there is absolutely NO surety for either of these insureds that coverage will be there under ACA when they need it most. We have already one surrogate where her EOC was silent on surrogacy and she has had over $30K in claims at her fourth month of pregnancy and now the insurer has denied everything after the underwriter requested all medical records. Guess what...a surrogacy agency advised her/IP's and the surrogacy attorney had backed it up...they were both wrong. Please help us help these vulnerable people IP's and Surrogates and especially International IP's and give them the correct information that none of the Major Medical insurance is peace of mind insurance for this third party risk. We have this disclosure with every piece of ACA business we write/sell now trying to make people aware. We are very concerned especially in California, MANY surrogate have this to depend on and they are all going to be denied in the end...but only time will tell. New Life is working hard in our community and on Capitol Hill to help clarify the situation. But as all bureaucratic paper work goes is a slow process meanwhile folks are still taking the risk. Kindest regards, Trish

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