The New York Times recently published an article on Sunday, Dec. 13 about surrogacy and its possible effects on the resulting children, intended parents and gestational carriers.

Excerpt:

But as the dispute over the Michigan twins reveals, surrogacy arrangements that go badly can have profound implications, particularly for the children.  Surrogacy is largely without regulation, with no authority deciding who may obtain babies through surrogacy or who may serve as a surrogate, according to interviews and court records.

Instead, surrogacy is controlled mainly by fertility doctors, who determine which arrangements are carried out and also earn money by performing the procedures.  And while some agencies that coordinate surrogacies and some clinics that carry them out strictly adhere to guidelines, others do not, the interviews and records show.

The lax atmosphere means that it is now essentially possible to order up a baby, creating an emerging commercial market for surrogate babies that raises vexing ethical questions.

I was in Washington, D.C. on the day this article was published.  I was there to attend a meeting that the American Society of Reproductive Medicine (ASRM) had arranged for leaders in the fertility field to discuss options for the oversight of assisted reproduction (including third-party reproduction such as surrogacy).  I received a text message from a colleague on Sunday morning asking if I had read The New York Time, commenting that, “This is just what we need right now!” (sarcastically, of course).  We both knew that this article was definitely NOT what the field of fertility medicine needed right now.

The article was just the latest in a barrage of media sensationalism casting fertility physicians, related professionals, and patients in the worst possible light.  Riding on the heels of the “Octomom,” Nadya Suleman, and other highly publicized adverse outcomes, this article fuels the misperception of the general public that these individual negative outcomes are representative of the practice of fertility medicine as a whole.  They are not, yet they could easily lead to negative, overly restrictive legislation that limits the access of all patients to desirable and viable family-building alternatives such as surrogacy.

The luncheon keynote speaker at the D.C. meeting was Liz Mundy, a Washington Post staff writer and author of Everything Conceivable.  A member of the audience asked her in light of The New York Times’ article why the media always seems to focus in on the negative stories about surrogacy and fertility treatments instead of the many, many more heart-warming, positive stories?  The question left her without a quick response, and she eventually conceded that that was just how the media operated.  Negative stories often sell more papers.  There was no indication from the podium that that would ever change.

I do not believe that fertility medicine or its patients should be defined by rare negative outcomes.  It took over twenty-five years of in vitro fertilization (IVF) for a patient with questionable judgment and suspect motives (Ms. Suleman) to come under the care of an unwise and irresponsible physician (Dr. Michael Kamrava) and to set the stage for a one-in-a-million physiological outcome (8 babies from 6 embryos) that was the Octomom case.  This should not be the case by which thousands of responsible and successful IVF patients and cycles are judged.  The reporter in The New York Times article researched diligently and focused on a mere three negative surrogacy cases that have occurred since 2004 in order to write her rather accusatory and condemnatory article.  These relatively rare occurrences should not define either surrogacy or the ethical standards of the professionals or intended parents who participate in and facilitate the process. 

Yet the Michigan case does send those who want to participate in the surrogacy process, both professionals and intended parents, some clear signals.

 The intended parents in the Michigan case found their surrogate independently through a surrogacy site on the Internet, surromomsonline.com.  There is no information on what kind of screening the intended parents did on their selected surrogate, which may very well mean that there was none, but there was clearly an insufficient exchange of background information and personal history.  In this instance, the surrogate was never told that the intended mother suffered in the past from schizophrenia but had been under successful medication for the condition for the eight years leading up to the surrogacy arrangement.  This came as an unwelcome surprise to the surrogate at the end of the process.  The surrogate, intended parents and fertility clinic apparently proceeded with the surrogacy arrangement without the typical psychological screening of the surrogate (or intended parents) that is clearly recommended by ASRM ethical guidelines.  The parents also initiated a surrogacy program that is a rare outlier among typical surrogacy programs:  One in which neither intended parent’s egg or sperm is used.  Most importantly, the intended parents lived in and selected a surrogate from Michigan, a state which criminalizes aspects of surrogacy and expressly states that surrogacy agreements are unenforceable. 

So, what signals does this unusual case send?

First, my experience is that, for whatever reason, self-matched and do-it-yourself surrogacy programs are the most likely to break down, frustrate the parties’ original intentions, and cause negative legal and media outcomes.  I don’t work on my car because it is too complicated for me to figure out.  Any maintenance I perform will, undoubtedly, cause more harm than good.  The same is true for surrogacy.  It is even more complex than any modern automobile, combining medical, psychological, legal, insurance, financial, administrative and tax issues, just to name a few.  Rather than substituting their judgment for a single auto mechanic, the intended parents are substituting their judgment for numerous medical, psychological, and legal professionals.  Eliminating any one of these professionals can cause the program to fail unexpectedly, but inevitably.  Any intended parent who tries to conduct a do-it-yourself surrogacy program is, quite simply, begging for trouble.  The Michigan parents did it themselves, and their surrogate is now the custodial mother of their prospective children.

Second, finding a surrogate online at any mass Internet clearing house for surrogates is a very bad idea.  There is just no way to be certain of the qualifications, suitability, or reliability of the surrogates who are marketing themselves there.  Virtually all of the worst surrogacy cases that I have witnessed or heard of have involved either a relative or an online “independent” surrogate.  The vast majority of suitable surrogates work through reliable agencies that carefully screen and prepare them for the process.  Working through an agency provides only benefits with no detriments to any qualified surrogate candidate.  Therefore, the surrogates who don’t work through reputable agencies but market online are often (but not always) those who cannot successfully qualify to work through an agency.  That means that they may have significant physical, psychological or legal conditions that should disqualify them from the process.  The only way they can act as a surrogate is to circumvent the agency screening process and work independently.  By circumstances and definition, online independent surrogates are more risky than well-screened, carefully vetted agency surrogates.  The Michigan couple selected an online surrogate, and now their surrogate kept the twin children, justifying it by citing, “ . . . God placed this on my heart for a reason.”

Third, every surrogacy program has countless steps that need to be done in a certain order and NONE of which should be skipped.  One of them is thorough screening of the surrogate and complete disclosure of life facts and circumstances between the parties.  A psychological screening by an experienced and qualified ASRM member social worker or psychologist is ESSENTIAL to the screening of any surrogate.  The screening serves to educate her on relevant issues and evaluate her ability to complete the process as intended.  It includes certain psychological testing and an analysis of the surrogate’s support and belief systems.  In addition, a criminal background check, maternity record review, and insurance coverage review are critical parts of the surrogate’s qualifications that should be conducted.  Surrogates who have criminal records, have been psychologically disqualified, or have had dangerous previous pregnancies or deliveries are not suitable candidates.  Whether the parents should be screened is a subject of some additional debate since it bears on a couple’s constitutional right to procreate (to the extent that such a right exists, if at all).  Some believe intended parents should not be screened since parents who have their children without medical assistance are not screened.  In any case, screening of the parents will often identify and raise topics for disclosure to and discussion with the surrogate.  In the Michigan case, insufficient screening was done, and, not to beat a dead horse, the absence of the screening and the discussions that it may have engendered resulted in the intended parents remaining childless at this time.

Fourth, the intended parents in the Michigan case pushed surrogacy to its logical limits by not using any of their own reproductive components for the pregnancy.  Independent donors provided the egg and sperm, and the pregnancy was carried by a surrogate.  This is VERY unusual for most typical surrogacy programs.  However, is there a minimum number of components that should be required for a reproductive program?  If intended parents can use a sperm donor OR an egg donor OR a surrogate, OR a donor and a surrogate, what is the logical argument that using all three such components converts the surrogacy process into something less necessary or honorable?  As was so clearly stated by the California Supreme Court in a 1998 surrogacy case in California (Buzzanca in which two donors and a surrogate were used), it is the original, pre-pregnancy INTENT that initiates and implements the medical program and the resulting pregnancy that distinguishes surrogacy from adoption, not the number of components that are required to bring the pregnancy about.  The original intent of all of the participants in the Michigan case is crystal clear – the intended parents were supposed to end up with the children.  I think people should be held to their promises.  Nevertheless, the writer of this article clearly casts doubt on the propriety of such an arrangement.

Finally, the entire surrogacy program was done by parents and a surrogate in Michigan.  Surrogacy agreements are specifically stated to be unenforceable BY LAW in Michigan.  Conducting a surrogacy in a state where it is illegal or unenforceable (like Michigan, New York, Washington, D.C., etc.) or using a form of surrogacy that has never been enforced in a contested case, like traditional surrogacy using artificial insemination with the surrogate’s own egg, is a very clear AND A VERY UNWISE risk (especially with an unknown surrogate found on a questionable Internet site with inadequate screening).  If a dispute arises, it is clear in such cases that the intended parents will NOT prevail.  All of the previous shortcomings discussed above could have occurred and the intended parents might still have ended up with custody and parentage of their children if only they had used a surrogate in a state with more established and favorable surrogacy law.  Michigan is clearly not that state, and, when a dispute arose, the intended parents had lost before it ever started because of the law.  NEVER conduct a surrogacy in an unfavorable legal climate unless you are willing to accept the risk of completing the process and not receiving the resulting children as intended.

There is a right way and a wrong way to participate in a surrogacy program.  The Michigan parents chose all the wrong ways.  I do not begrudge them either their effort or opportunity.  Perhaps they could not have afforded to do it any other way, which is another lengthy blog entirely.  However, I feel they cannot now complain about the outcome.  They preordained it by their unwise choices.

As for the reporter, I do not necessarily disagree with some of her premises.  Surrogacy is loosely regulated by practice and ethical guidelines promulgated by the ASRM.  However, those guidelines DO establish reasonable parameters, which, if followed, lead to highly reliable outcomes.  Contrary to the picture painted by The New York Times’ writer, surrogacy is a very reliable and successful family-building option.  Though there are no formal statistics, an anecdotal reference in an article published in 2002 indicated that contested surrogacies occur in less than one-half percent of all surrogacies.  As far as I’m concerned, that evidences a pretty reliable process. 

I think it’s an overstatement to say that surrogacy occurs without regulation.  It occurs with the same self-regulation that works successfully in all other areas of medicine.  Could surrogacy benefit by a more enforceable set of guidelines?  Perhaps, but at what cost?  Would the mere process of setting guidelines result in unfair limitations to intended parents’ access to surrogacy or the existence of surrogacy overall?  Quite possibly.  There are no simple solutions.  The American Bar Association Assisted Reproductive Technology Committee is currently grappling with these complex issues of appropriate and reasonable regulation.  It is working hand-in-hand with the ASRM, patient organizations, and other professionals who facilitate fertility programs for aspiring parents.  I believe that the stakeholders will come up with appropriate solutions.  I am not opposed to such participative regulation.  I am opposed to knee-jerk legislation by politicians who know little or nothing about the fertility process and are motivated by and rely solely on misleading media reports such as The Times’ article.

Surrogacy has resulted in hundreds of happy new families every year.  Surrogacy is nearly always conducted in a responsible, reliable, respectful way by the professionals and participants involved.  Do not judge a book by its cover, and do not judge fertility medicine or surrogacy by the rare exceptions.  Neither the Michigan case nor any of the other stories in The Times’ article are representative of the surrogacy process as a whole. 

I firmly believe that media coverage of fertility medicine should be proportionate to the outcomes.  If there are thousands of success stories for every sad story in fertility, there should be thousands of positive media articles for every critical one.  It would be only fair. 

Steven H. Snyder, Esq.