Introduction

Perhaps in no other arrangement in the world of fertility are the legal, medical and psychological complexities of reproduction as fraught with issues as in traditional surrogacy and gestational carrier arrangements. Although the practice of surrogacy dates back before the Old Testament, as a method through which one woman carries a child for another as a means to assist a couple in achieving their family building goals, it was not practiced in contemporary society formally until the 1970s. With technological advances in assisted reproductive technologies (ART), specifically in vitro fertilization (IVF) and egg donation, it became possible for a woman to gestate and give birth to a child that was not genetically related to her.

An early dilemma of surrogacy was the adoption and use of the appropriate terminology for the various parties involved in this type of third party reproduction. In this chapter, the term traditional surrogate (TS) will be used for a woman who carries a pregnancy to which she is genetically related as a result of contributing her oocytes at conception. The term gestational carrier (GC) will be used to describe a woman who carries a pregnancy to which she is not genetically related. In this arrangement, the egg(s) are from the intended biological mother, who generally for medical reasons cannot carry a pregnancy herself, or are from an egg donor. The use of a GC accounts for the majority of all surrogate pregnancies in the United States [1].

The term intended parents (IP) is used for individuals or couples who are the contracting, prospective parent(s). The use of a GC has also allowed the possibility for gay male couples as well as single men and women to have a child. An increasing number of GCs conceive with both sperm and egg donor gametes for IPs. Women acting as TS and GC may be commercially recruited and paid for their service (the most common) or may be altruistic, or compassionate, as when a family member or friend volunteers pro bono.

Due to the increasing use and availability of surrogacy as a form of alternative family building, an entire industry has developed that identifies and brings potential GCs and IPs together from all over the world. At times, IPs may try to find a GC on their own, either through the Internet, print advertising or word of mouth, yet this may place potential IPs at risk for exploitation, and working with a reputable surrogacy agency or agent can alleviate many potential problems. The motivation to become a TS or GC, also, may involve vulnerabilities and risks to the woman and her family pursuing this arrangement. Thus, how these arrangements and relationships are facilitated becomes crucial in their success.

There is wide variation in screening and services offered by surrogacy agencies and reproductive health lawyers. Some act as a “matchmaking” service only, while others provide full legal and psychological services throughout the process. In 1986, there were at least six agencies in the United States and one in Europe that arranged for potential TS and GC to meet infertile couples and individuals. By 2010, the number of agencies in the United States grew to more than 23, with a total of 7000 births by surrogate mothers/gestational carriers occurring in the United States and more than 300 births in Great Britain. (Synesiou K. Personal conversation. Encino, CA. 25 November, 2013.) Since there is no central reporting of such contractual arrangements, the actual number is unknown and assumed to be far higher. There are virtually no statistics on how many women and families are involved in the gestational carrier market. Nevertheless, the available reports from the CDC and the Society for Assisted Reproductive Technology (SART) clearly show that the number of infants born to gestational surrogates almost doubled from 2004 to 2008, from 738 babies born to nearly 1400 [2].

International travel has proliferated for IPs requiring the service of carriers or surrogates. The growing interest in “cross-border reproductive services” (CBRS) has generated both legal and ethical concerns [3]. Surrogate parenting arrangements occur primarily in the United States, Asia and Eastern Europe. There are a number of factors that may promote such cross-border surrogacy arrangements within these three geographical areas. Internationally, the rules determining gestational surrogacy have progressed in some places and are still evolving in others. In many countries, governing bodies have taken on the task of deciding the legalities of surrogacy. Most often they address financial compensation, restrictions on who is allowed to contract with a surrogate, and mandated involvement by professionals and legal determination of parentage. Such locations are particularly appealing to CBRS participants from countries with stringent anti-surrogacy laws.

Furthermore, countries that have strong religious or cultural influences in their governing bodies prohibit surrogacy on the basis of religious tenets (e.g., Roman Catholic or Muslim) that do not condone the concept of an outside party involving herself in the creation of a couple’s child. In addition, some countries may not have the specific service available because of lack of expertise, lack of affordability and/or limited numbers of donors and surrogates. For other countries, the service may be unavailable because it is not considered sufficiently safe or the service is not available for certain categories of individuals, especially at public expense, on the basis of age, marital status or sexual orientation; while other individuals and patients may fear lack of medical privacy and confidentiality, and thus travel abroad. Finally, services may simply be cheaper in other countries [4,5].

The United States has no national policy on reproductive technologies like surrogacy and gestational parenting. Issues of family law are routinely decided by individual states. Some states have determined protocols, the enforceability of a contract, and have restricted payments to TS and GC. The state laws and regulations determining gestational surrogacy are still evolving. Some states ban surrogacy outright, some ban paid surrogacy but allow a woman to offer her services as a volunteer while others are permissive of paid gestational carrier arrangements [6].

Legal consultation is imperative and will help clients make informed decisions, provide accurate information and create a basis for an informed consent. Most gestational carrier arrangements involve a contract that outlines the responsibilities, confidentiality, medical insurance coverage, financial reimbursements (including lack of), embryo transfer limits, pregnancy termination, prenatal care, lost wages and childcare costs, post-birth contact between parties, social media preferences and so on. The risks of CBRS need to be addressed. It is important for clients to know the laws in the place of the birth, laws in the parents’ home state or country and the laws to any area a pregnant GC may travel [7].

The European Society of Human Reproduction and Embryology (ESHRE) and the American Society of Reproductive Medicine (ASRM), have published guidelines for professionals with recommendations for practices with gestational carriers. Both approaches have included the provision of counseling as part of patient care for all participants in TS and GC family building arrangements. ESHRE has professional guidelines on surrogacy and intrafamilial surrogacy, both of which provide specific recommendations on psychological counseling of all participants, education, assessment and support as well as provisions for rejection or denial [8]. After a long review process, the ASRM Practice Committee Guidelines were published in 2012 and outline the physicians’ protocol and criteria for treating GC and IP, as well as identifying the need for psychological counseling, education and assessment (including psychological testing, “where appropriate”) of IP and GC by a qualified mental health professional. It also outlines the circumstances and/or contraindications warranting disqualification or rejection of the IP or GC [9]. The publication by the ASRM Ethics Committee, entitled Protecting the Gestational Carrier, provides critical steps involved in the evaluation and treatment of TS and GC [10]. It outlines a standard practice of care, highlighting the importance of informed consent, legal counsel and psychological support so that all parties involved are protected.

Given the legal risk that exists with these arrangements and the ability to be sure all participants are in a good place to move forward with treatment, withstanding the uncertainties ahead, counseling becomes an important part of medical care and should occur before treatment begins. In order to minimize risks and maximize the positive outcome for both families, fertility counselors can provide valuable and thoughtful guidance and education, and assist in clarifying and exploring roles, expectations and potential outcomes for all parties involved. Fertility counselors traditionally meet separately with the IPs; separately with the GC for psychological assessment and consultation (with husband/significant other, if applicable); and finally with both the IPs and GC in a group session. Each of these sessions has different purposes and goals, yet all are components in building, planning and navigating the family building process with a gestational carrier.

As a facilitator with all parties involved, fertility counselors are presented with two sets of clients, each with their own agendas, concerns, perspectives and need for confidentiality. The control of information – who is entitled to know what – can be tenuous and difficult when conducting evaluations. It is recommended that fertility counselors address these issues early in the consultations, as well as the fertility counselor’s role and who is entitled to the results of the psychological testing and assessment, so that they are acting ethically and legally. In addition, practitioners can provide ongoing support to the IPs and GC as the relationship unfolds during fertility treatment, pregnancy and postpartum. This is a set of relationships that, one could make a case, needs just as much attention and tending to during the pregnancy, following delivery and across time as the child(ren) grow up and the families – both of them – develop and mature.

Assessing and educating the intended parent(s)

Psychological screening and preparation of IP(s) attempt to assess each person’s readiness and ability to work with a woman who will have total care of the unborn child for the 40 weeks of pregnancy. For Katrina and David, the loss of their prior pregnancies and now the loss of control over the care for their unborn child can become a source of fear and insecurity. For the GC arrangement to be successful, it is ideal that IPs be empathic, adaptive and resilient. Participants who are overly intrusive or controlling, who are not comfortable with the concept of surrogacy (and potentially coupled with donated gametes), or who have personality or active mental health disorders, put the gestational carrier at risk. The ability to trust, contain anxieties and being generous in spirit serves IPs well. As shown in Table 9.1, the clinical interview focuses on the IPs’ expectations and preferences of the surrogacy arrangement during and after pregnancy, on their decision-making processes, on the couple’s coping abilities and on their marital adjustment. (Addendum 9.1 provides a detailed IP interview and group session format to follow.)

Revealing information also comes from the IPs’ perception of the gestational carrier and their comfort level for contact with her and her family. A fertility counselor needs to determine if Katrina’s reluctance to envision establishing a relationship, as well as imagining a future connection for her and her child with Jennifer, is due to their personalities or due to their disappointments and lack of experience with surrogacy. They will have a long-term relationship with the carrier (and her family), lasting 13–18 months prior to the birth of the child. The ambiguous process of choosing a carrier, the intense and complicated means of conceiving, the long pregnancy and the years ahead of parenting all require comfort with the process and ideally with the carrier. Conflicts are less likely to be exacerbated if the parents have the ability not to be overly intrusive or controlling, can empathize with the carrier’s situation and keep communication open. If the IPs cannot envision themselves having some contact with the surrogate or carrier, then they should not proceed since it may reveal a discomfort with their decisions and with the child’s history.

The assessment of the couple needs to be culturally sensitive. There are cultural differences in perceptions of privacy, pregnancy, gift giving, family ties, parenting, disclosure, infertility and revealing feelings, to name but a few. The fertility counselor should ask the IPs to educate the GC about their religious and cultural background, as well as discuss the IPs’ assumptions about the GC’s culture, as a proactive step to avoid hurt feelings and minimize incorrect ideas.

A discussion of privacy, secrecy and disclosure needs to be explored as these may reflect cultural differences. Katrina’s plan to keep the egg donation a secret, or perhaps not tell others about the surrogate mother, may reflect her unresolved issues; however, it may also reflect her culture. It is important to consider the culture of where the child(ren) will be raised, not just the culture of where the child(ren) will be born. Keeping the egg donation contribution secret from Jennifer is neither practical nor respectful, as they are trusting Jennifer to carry their child(ren) yet somehow feel she cannot be trusted in knowing this information. Perhaps if David and Katrina discuss their dilemma with Jennifer, their relationship may be enhanced and hurtful misunderstandings may be minimized. It is also essential that Jennifer and Joe be able to consider their own feelings about the use of donated gametes in the pregnancy and their moral, religious and ethical framework surrounding the topic. Furthermore, technology, advances in science and the Internet, may make genetic and birth secrets obsolete in the generations to come. Again, then, Katrina and David need to be resolved that the child may come to know the non-genetic variable and that Jennifer will know the origins of the children’s conception.

Understanding the medical practices and prenatal care of the GC’s home country is important. It is common for IP couples undergoing IVF to be in the clinic’s city for two weeks prior to embryo transfer, visit the carrier’s country at least once during pregnancy, and remain in that country again for a minimum of two weeks after the birth. Some countries require longer stays of four to six weeks. If children are born prematurely, new parents can be displaced for months. Having a professional interpreter available is a necessity if there is a language barrier, so that discussions of sensitive medical, psychological and legal issues are understood as thoroughly as possible. Finally, the issue of payment for medical costs of the newborn child needs to be explored prior to conception. When the IPs are not citizens of the country where the birth takes place, payment for the pediatrician and hospitalization care may be stressful and very costly. It is helpful to highlight the costs and risks of a multiple gestation. Premature birth can cause extreme financial hardship and months of displacement for the parents.

Evaluation of the gestational carrier

A significant goal of preconception counseling with a potential GC is helping her decide if being a carrier will serve a positive, satisfying purpose, or have a negative, dysfunctional impact on her life. She needs to be able to provide informed consent, be able to relinquish the child, and exit the experience whole and unharmed. In an effort to serve both parties, the fertility counselor must assess the candidate’s motivations, her ability to accurately perceive situations, her personality and her intellectual competency. Table 9.2 identifies considerations for participation as a GC and Table 9.3 describes issues to be covered in a GC interview. Assessing decision-making processes, social and family relationships, manner of resolving problems and ability to take care of herself and others (e.g., her own children) is important. Special consideration needs to be given to issues of loss and trauma in her history, such as family of origin conflicts, history of sexual assault or physical/sexual/emotional abuse, abandonment and death of family members or significant others, as well as any unresolved pregnancy termination or loss. (Addendum 9.2 provides a detailed GC interview format to follow.)

Table 9.2

Considerations for participation as a gestational carrier.

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