SANTA BARBARA, CALIF. — Gestational surrogacy remains mired in legal limbo from state to state and nation to nation, despite its promise as a road to parenthood for the most difficult-to-treat infertility patients.
Resulting uncertainties have discouraged the majority of Society for Assisted Reproductive Technology (SART) member centers from performing surrogacy, to the detriment of patients in need, said Dr. Gabriel Garzo of the University of California, San Diego.
The number of surrogacy cycles reported by SART edged upward in 2008, a reversal of a 15.5% decline in 2007, he reported at the meeting sponsored by the University of California, Los Angeles.
Figures for 2009 are not yet available, Sean Tipton, director of public affairs for the American Society for Reproductive Medicine, said in an interview.
In 2008, there were 847 surrogacy cycles reported, not including those involving egg donation, which Dr. Garzo estimated may have added about 150 to the total. In 2005, 731 cycles were reported, followed by 784 in 2006, and just 662 in 2007.
Indications for surrogacy most often include an absent or nonfunctional uterus, medical conditions that pose a risk during pregnancy, repeated in vitro fertilization failure, and/or recurrent pregnancy loss.
Contracting with a surrogate in such cases offers the possibility of having a child that is genetically related to one or both members of a couple.
Medically, the practice is quite straightforward and similar to egg donation, said Dr. Garzo.
However, legal, ethical, and psychological challenges abound.
The majority of states have no statutes regarding surrogacy, and in a handful of jurisdictions, including Michigan, New York, and Washington, D.C., surrogacy contracts are considered a crime.
“In many states, genetic parents have to adopt their genetic child born to a surrogate mother,” he said.
Monetary questions are always an issue. In Illinois, for instance, government bodies are debating the issue of whose health insurance pays maternity benefits: the surrogate's or the “intended parent's” insurance?
In Wisconsin, insurance policies that cover maternity expenses cannot exclude coverage for women acting as surrogate mothers, that state's Supreme Court held.
Potential controversies are especially acute in the case of paid surrogacy, when compensation covers more than the surrogate's medical and health expenses.
Bitter legal disputes have arisen, in which egg donors, sperm donors, surrogates, and divorcing “intended parents” fight for custody in the absence of clear statutes, precedents, or federal guidelines.
Legal dilemmas have crossed international borders as well. In India, where surrogacy for couples around the world has become a $445 million-a-year business, human rights activists have questioned the practice of requiring some surrogates to remain in supervised dormitories with limited visits from their families. The citizenship of surrogate children born in Indian clinics has been called into question, as in the case of genetic twins of a British mother who were “stateless” for weeks when the United Kingdom determined they were Indian citizens and India declared them to be British citizens.
Intended parents from Germany and Japan also have faced challenges in having their genetic children recognized by their governments after surrogate births in India.
A Canadian couple who underwent DNA testing as part of the adoption of twins they assumed were their offspring discovered that they had no genetic link to the infants born to a surrogate in India. Those babies are now being raised in an orphanage, said Dr. Garzo.
Some American surrogacy agencies are under scrutiny as well, including one in Beverly Hills, Calif., that is being sued by seven couples from Spain who alleged that they were duped into spending hundreds of thousands of dollars for surrogacy contracts that never materialized.
In the midst of such turmoil, Dr. Garzo encouraged physicians who decline to participate in surrogacy to refer couples not to an agency, but to an ART center that performs surrogacy, since agencies are not subject to any oversight or licensing requirements. “The professional psychosocial screening of surrogates and genetic parents is really essential to prevent potential problems,” he said.
Surrogate medical screening is also necessary, but simpler, aiming at ensuring the candidate is healthy, is under age 35, and has a BMI of less than 30 kg/m
Single embryos should be transferred unless extraordinary circumstances exist, said Dr. Garzo.
Any legal contract must conform with state statutes or case law, and should include preconditions and consideration of health-related behaviors of the surrogate, as well as contingencies in the case of prenatal diagnosis of genetic or chromosomal abnormalities, birth of a child with disabilities, and/or death or divorce of any of the parties involved, he said.