Can a friend or family member be a surrogate?

My mother was an invaluable resource when I experienced seemingly endless years of infertility and ultimate surrogacy journey. She helped with research, made phone calls, sat with me in doctors’ waiting rooms, and scheduled medical appointments. I knew she would do whatever it took to help me build my family. At one point, my then 60-year-old mother half-jokingly even offered to be my surrogate. We brushed off the idea due to her age (sorry mom!), however, family working together in family building efforts is surprisingly quite common for many reasons. In fact, in November 2020, 51-year-old Julie Loving, from Illinois, gave birth to her own grandchild as she successfully acted as a gestational surrogate for her 29-year-old daughter who was struggling for years with infertility and pregnancy complications[1]. Family reproductive assistance was also reflected on the big screen in Paul Giamatti’s and Kathryn Hahn’s 2018 film, Private Life, where Paul and Kathryn’s characters’ failed adoption and IVF efforts lead to the leading couple attempting to receive donated eggs from their 25-year-old niece. Is involving family directly in the third party reproductive equation ethical, legal, or socially acceptable? You can’t choose your family, but you can choose your donor or surrogate. While working with a family member may be the ideal option for third party reproduction for a variety of reasons such as genetic kinship or saving on costs, it must be a very well thought out and fully considered endeavor to avoid a negative impact on the family dynamic. Before embarking upon working with a family member to either donate genetic material or act as a surrogate, the parties need to first take a big step back before moving forward to carefully analyze the legal, psychological, and medical risks and potential complications involved with the applicable third party reproductive process. There are two broad categories of family related reproductive matters typically accepted by third party reproduction professionals: (i) intragenerationally where the arrangement involves family of a similar age such as a first- or second-degree family member (i.e. sister, brother, or cousin) donating genetic material to an intended parent, or (ii) intergenerationally, as seen with the grandmother surrogate, where a parent or grandparent may assist their children either genetically with gamete donation or as a surrogate. As a third party reproductive attorney working with so many different types of arrangements for intended parent(s) considering surrogacy and sperm/egg/embryo donations, I see that it is actually quite common for family members to step in to assist one another with intrafamilial donations and surrogacy. It truly is a beautiful act and experience to witness this during the legal process. The most common way I see family assist each other is through sperm or egg donation. With the donation of a family members’ sperm or egg, to be used with the genetics of the non-genetic partner/spouse of the recipient couple, this allows a couple to have a familial genetic connection to their child(ren) since the embryo is created from their family members genetics joined with their partner’s/spouse’s genetics. I see family genetic donations not only with same sex couples receiving a family member’s eggs, but also with those who suffer from infertility and receive either a donated egg, sperm, or even a donated embryo from their generous family member. I have also been involved in matters where family members – be it sisters/cousins/aunts, etc. have acted as gestational surrogates for the intended parent(s). Even though there is no genetic connection of the family member surrogate to the intended parent(s) since I am referencing gestational surrogacy (and not traditional surrogacy with the use of the surrogate’s egg), it still may provide comfort to the intended parent(s) working with family, and can potentially save on costs and matching up with a suitable surrogate wait times. For some intended parents, the cost of a matching agency or typical payments made to a donor or surrogate are out of their budget, and working with a family member is a financially feasible means to have a child as many times family matters involve an altruistic arrangements. Best Practice and Red Flags with Intrafamiliar Donations and Surrogacy Pursuant to the Ethics Committee of the ASRM’s article titled Using Family Members as Gamete Donors or Surrogates[2] (“ASRM Article”), certain family matters in third party reproduction are considered ethical, however, there are heightened considerations that must be taken into account prior to embarking upon a family match. Working with family in a third party reproduction journey requires the same medical, psychological, and legal steps as if one was working with an unfamiliar or unrelated person, however it adds additional counseling from various professionals to ensure that all parties have voluntarily made informed consent to the process involved. First off, it seems to go without saying that when receiving any genetic material from a family member that the use of the genetic material is not mixed with the genetics of the genetic recipient/intended parent as that would be an “incestuous union” prohibited per the ASRM and by many laws. The ASRM Article states, “while familial collaboration may offer advantages over the use of non-family donors and surrogates, it may also present unique problems. These problems include issues of apparent incest (i.e., sexual relations between two closely related individuals) or consanguinity (i.e., marriage and reproduction between individuals who are closely related genetically), undue influence to participate, and confused parentage for resulting children.” It may be difficult when working with a family member to understand why certain practices need to be followed, such as independent legal counseling and psychological counseling by a qualified mental health professional. Either the parties cannot justify the added financial expense of these steps or do not initially see the value or necessity since they are all family, however, family matters actually heighten the necessity of these best practices. Medical Intrafamiliar Considerations: Before diving too deep into considering a familial collaboration, it is important to inquire right off the bat whether your clinic approves the anticipated family relationship arrangements as not all clinics accept all forms of intrafamiliar arrangements. If approved by the fertility clinic, the surrogate or donor family member will proceed with the clinic’s required screening protocol which will includes, in part, genetic and infectious disease screening, at the expense of the intended parent(s). The fertility clinic plays a critical role in the process of informed consent as to the medical risks involved in the process and all parties involved should consult with the fertility clinic about such risks. Psychological Intrafamiliar Considerations: Parties considering family reproductive matters may want to consider performing a preliminary psychological evaluation prior to embarking on their journey to ensure that from a social and psychological standpoint, everyone feel comfortable and are educated about the emotional considerations with the anticipated process between family members. Family building is an emotionally charged process and adding your own family in the equation raises concerns of potential undue influence or coercion (be it intentional or unintentional influence), and challenges to personal autonomy of the family member donor or surrogate. Potential clients often times ask if the psychological evaluation is truly needed when working with family since in many states, the psychological evaluation is not required by law. It is absolutely a best practice, and in some instances required by state law, for the parties to perform an official mental health evaluation, paid for by the intended parents, before the parties’ contracts are drafted and well before any donation or surrogacy matter starts with the fertility clinic. In family collaboration matters, the parties may contemplate participating in continued psychological care both through the pregnancy and following the delivery of the child. The payment obligations of the intended parents for this continued psychological care of the family member surrogate/donor can be addressed in the parties’ applicable legal agreements. A mental health evaluation can help the parties not only process the emotional considerations between the direct parties involved, but it can provide guidance and help setting expectations on how to talk to others family members, the community at large, or the children conceived from the process as to the method of conception involving a family member. A properly performed mental health evaluation not only helps establish and set the expectation between the parties, but also helps protect the welfare of the unborn child as it can flush out the emotional considerations that come into play. The outcome of discussions from the mental health evaluation may also be incorporated into the parties legal agreements addressing the parties preferred confidentiality language, sharing with the child how they were conceived, and guidelines on future contact between the applicable family members. The ASRM Article references concerns that need to be analyzed and include some of the following: Intrafamilial collaborative reproduction raises ethical concerns distinct from concerns raised by other donor or surrogate arrangements. Can a donor or surrogate closely tied to and perhaps dependent on the recipient couple make a free and fully informed decision? What are the consequences of the unusual resulting relationships on the donor or surrogate, donor-conceived persons, and rest of the family? What are the consequences of the creation of new genetic relationships that would be otherwise impossible? The lack of information regarding these important questions illustrates the knowledge gaps that should be the subjects of formal investigation. In the meantime, providers should not hesitate to share these concerns in the course of counseling their patients Legal Intrafamiliar Considerations: A hopeful intended parent should also discuss the family collaboration arrangement with an experienced third party reproductive attorney licensed in the applicable state of the arrangement to ensure it complies with the applicable state law. If the matter ultimately proceeds forward following medical and psychosocial approval of all parties involved, the intended parents will need to be represented by their own attorney, and the intended parent will need to pay for an independent attorney for their family member surrogate or donor, to ensure that all parties are adequately represented. It may be challenging for family members to understand why all parties need independent legal representation since there is a high level of trust between family and many times, they do not want to incur the added cost. It is imperative that all parties be separately represented, and sometimes separate legal representation is required by state law, to ensure that the parties have freely and voluntarily entered into the matter knowing all legal risks involved in the process and codifying this informed consent, among other obligations, in writing. With matters of family gamete donation, the donor will have a genetic connection to the child and it is more likely that they will be involved in the child’s life than that of an anonymous gamete donor. The need for clear legal documentation ensuring that the parental rights of the parties is spelled out is imperative with family donations. The parties need to be properly counseled on the point that while the gamete donor is family, genetically related to the child, and involved in the intended parents and child’s life in the future, the donor does not have any legal rights or ability to enforce visitation if the intended parents decide to sever ties with the gamete family member donor in the future. Family and money can be complicated; setting baby making aside, however, it is important for the parties to breach the subject of the financial arrangement between the parties at the beginning of the process. At a minimum, the intended parents should be responsible for the medical expenses and any out of pocket expenses of their family member associated with the process. Whether or not the family member surrogate/donor is being compensated for the donation or surrogacy needs to be evaluated per the applicable state law and discussed with your attorney. In many (but not all), family collaborate matters, the family member surrogate/donor either receives a reduced compensation package or no compensation at all from the intended parent(s)– but is instead a more altruistic arrangement – being reimbursed for any out of pocket expenses and medical expenses are paid for. The take away is that the path to parenthood via the help of family requires some extra love, time, and consideration, and parties should never try to skip any steps in the process relating to the medical, legal and psychological screening processes to provide the greatest likelihood of a positive and successful intrafamiliar reproductive match. [1] [2];!!K7bXOScpug!31kqQd1PGiAKot5GMDwOUJT_DDmZ137d3HevJa5XpYHcVsdmotOjsIyHdrLLuCgTGPQ$