A Guide To Starting Your Family Via Surrogate

by Winnie McCroy

EDGE Editor

Friday October 31, 2014

The move to secure marriage equality in the United States has brought with it a gay baby boom, with many couples ready to start a family. While this is a relatively uncomplicated process for lesbian couples, gay male couples who want to have a biological child of their own must often engage in a long and expensive process involving a gestational surrogate. In New York and Washington, DC, this process is complicated by the fact that these states ban surrogates.

"People from New York and even further, like Australia, come to California for these services, because they are illegal where they live," said Los Angeles-based fertility specialist Guy Ringler, MD. "The world's best doctors are here, and while other places also allow surrogacy, they may have adoption or child's rights issues, while California has no issues with intended parents."

The state's laws are very protective of the rights of intended parents, putting on the birth certificate the names of the people whose intent it was to create the child, rather than the gestational surrogate, which Ringler calls, "cleaner, simpler and after. It can be established in the beginning that they are the legal parents."

Lesbians who want to have children also often turn to California Cryobank, one of the largest, most reputable sperm banks, which ships all over the world. Things are a lot more complicated for men.

"Unlike heterosexual couples, single women and lesbian couples, male couples require both egg donation and surrogacy, which according to our surveys, costs on average $110,000," said Anthony Brown, board chairman of Men Having Babies. "And while gay marriage is now legal in both New York and New Jersey, the irony is that both states' treatment of surrogacy rank among the top five most restrictive in the U.S. Subsequently gay men in the region are forced to travel out-of-state, adding substantial costs to an already very expensive process, and making it challenging for couples to form bonds with their surrogates."

How To Start Your Family

The first step in starting your family is to meet with a fertility specialist or reproductive endocrinologist, to discuss treatment. One of the very first tests should be a semen analysis, to determine the quality and quantity of sperm, because any treatments to improve this (such as vitamins, antioxidants, or even switching to boxers) will take several months to have an impact.

Then, a reproductive endocrinologist will refer you to meet surrogate and egg donor agencies. "There are excellent surrogacy agencies in the U.S. that do a fine job, but they are all slightly different policies, so it's good to meet with a couple," said Ringler.

In most cases, there's a separate egg donor from the gestational carrier, so there's no genetic link for the donor. The embryo is transferred into the gestational surrogate as opposed to traditional surrogate, in which the mother ovulates and undergoes insemination.

The next step is to find an egg donor. This is very important because she will provide the genetics for your child. You should meet with or research several different agencies and find the ideal candidate for you.

"Fortunately, they have a large number of diverse candidates, and you can usually find whatever characteristics you're looking for. Rather than go to one agency and feel limited, it's good to explore several different agencies," said Ringler. "There is an option to for your child to meet the donor or be anonymous; if it's important for her to be part of your families' story, that may be an option."

In general, surrogates should be 21-30 years old, in good general health, and living a healthy lifestyle. They must undergo thorough medical, psychological and genetic evaluations to be good candidate. The donor is paid a certain fee, and the agency gets fee.

"I think it's really important that couples work with an experienced program," said Ringler. "We have years of experience doing this treatment and working with surrogacy programs, and are qualified professionals."

Make It Legal!

The next step on your journey to becoming parents is to protect your legal rights by securing a skilled fertility lawyer and drawing up the proper contracts. Richard B. Vaughn, founding partner of the International Fertility Law Group, said that this is one of the most important parts of the process.

"The first things I would ask someone is if they're working with an agency. It's one of the top ways to protect yourself, because the agency is screening and vetting your candidates," said Vaughn. "They make sure that your surrogate has been medically and psychologically cleared and has a background check done."

It's not mandatory to work with an agency, but it is necessary to go through these screenings. It's also important to check out the surrogate's insurance to see if it covers maternity care. Otherwise, the intended parents will have to pay all of her medical expenses out of pocket, including anything insurance won't cover.

Your lawyer should also evaluate the laws of both the state where the surrogate lives, and the state where the intended parents live. If you are in the U.S. and living in a state that won't allow same-sex second parent adoptions, that could potentially present a problem, if the surrogate also lives in a state where same-sex parents can't adopt. The biological father could have to go to that state and petition for a second-parent adoption.

Vaughn warns that states with marriage equality don't necessarily offer same-sex adoption, and also notes that most other countries also have restrictive laws. He said that although he's not a specialist in the laws of other countries, over time, he has developed a good sense of the laws in countries where most people are coming from.

"Once all that's done, we work on the contract; it's foolish to start paperwork before that's done, because if she doesn't pass, there's no point," said Vaughn. "I'm the last piece of puzzle for a lot of them, but they need a contract to get started."

After a fertility lawyer sends a letter to the doctor greenlighting the process, the parents and surrogate go about the process of getting pregnant.

Partway through the pregnancy, Vaughn will prepare clients for the court process. The law presumes that the woman carrying the child is the mother, so you have to go to court to rebut that presumption. The vast majority of these women are gestational surrogates, so they are not biologically related to the child they are carrying, and have no legal claim.

"We have to say, 'No, she's not the mother, these are the intended parents and their names should go on the birth certificate,'" said Vaughn. "The ideal is to do it in a state the grants both parents' names on the birth certificate. Otherwise you have to get a second-parent adoption order."

Vaughn stressed that the terminology here was important. He doesn't call these 'adoption orders,' because you aren't moving a child from one family to another.

"Surrogacy is a form of procreation, not adoption," he said. "So it should be called a parentage order, establishing parent/child relationships. Some states allow a pre-birth order, that will say immediately at birth that these intended parents are the legal parents. If we can do that, we will go to court during the pregnancy and get that, so after the birth, we can get a court order make it official."

The hospital will fill out the birth certificate paperwork, and send it to the county's vital records office or public health department, so that they can prepare the official birth certificate.

Getting Pregnant!

Once your fertility lawyer has given you the greenlight, you can start the medical treatments to get pregnant. The egg donor undergoes an IVF cycle with the goal of producing 15-25 eggs. The eggs are then inseminated with the sperm of the intended fathers to create embryos, then cultured for five days to evaluate their health and pregnancy potential. The best one or two are selected for transfer into the gestational surrogate.

"A lot of intended parents want to use an embryo from each sperm provided, and many hope for twins," said Ringler. "Whether you transfer one or two depends on how you feel about twins. Many elect a single embryo because of the complications with twins; it's always safer for babies to be born one at a time."

Any extra embryos are frozen, and can be used for additional children in the future, or for additional attempts, if the first fails. They are then implanted in the gestational surrogate, who Ringler called, "amazing women from all over the country who are committed to helping other individuals and couples experience parenthood."

The basic requirements are that they must have to had one normal pregnancy and delivery already, so they are aware of what's involved, and have proven reproductive ability.

"These women are proud to be surrogates," said Ringler. "They take good care of themselves, and do it for the experience of joy it gives to another couple. They are very dedicated to the process."

Want More Info?

And in the New York City area, November 2 is the Surrogacy Seminar & Expo for Gay Men, presented by Men Having Babies. The all-day event brings together medical, legal, financial and psychological experts, gays parents and their kids, surrogates, egg donors and representatives from the world's leading surrogacy agencies and fertility clinics. There will be workshops, panel discussions and on-site private consultations.

In addition, the afternoon will feature the first-ever public panel discussion featuring teenagers born of surrogacy by gay parents, presented by event co-sponsor Family Equality Council.

The afternoon's second panel, co-sponsored by Empire Pride Agenda, will both review the state of pending legislation allowing paid surrogacy in New York State, and discuss the long-term well-being effects of surrogacy, with featured speaker, Professor Susan Golombok from the Centre for Family Research at the University of Cambridge.

"Gay men could barely envision this picture ten years ago - when our community had very few surrogacy families to point to, and the kids were babies or toddlers," said Ron Poole-Dayan, Men Having Babies' executive director, whose twin children will be among the panelists. "The teen panel demonstrates how far we have come since Men Having Babies' first seminar a decade ago."

The event will be held on Sunday, Nov. 2 from 9 a.m.-7 p.m. at the JCC Manhattan, 334 Amsterdam Ave. at W. 76th St. Tickets are $10/$15 at the door, and are available at menhavingbabies.org/ny

Winnie McCroy is the Women on the EDGE Editor, HIV/Health Editor, and Assistant Entertainment Editor for EDGE Media Network, handling all women's news, HIV health stories and theater reviews throughout the U.S. She has contributed to other publications, including The Village Voice, Gay City News, Chelsea Now and The Advocate, and lives in Brooklyn, New York.