Each state has different laws regarding surrogacy and some states do require some form of medical necessity before being cleared to proceed with a surrogacy journey. What constitutes this medical need and how such medical need is determined is not specifically defined. Based on U.S. case law, it appears that the determination of a medical need is within the discretion of the doctor. An example of a state's law requiring a medical necessity for the intended parent(s) is in Florida Statutes 742.15 which states in part,
(2) The commissioning couple shall enter into a contract with a gestational surrogate only when, within reasonable medical certainty (emphasis added) as determined by a physician licensed under chapter 458 or chapter 459: (a) The commissioning mother cannot physically gestate a pregnancy to term; (b) The gestation will cause a risk to the physical health of the commissioning mother; or (c) The gestation will cause a risk to the health of the fetusThe term “reasonable medical certainty” is not defined within Florida’s surrogacy statute, however, this term appears within the labor and employment context in Florida case law and it is defined in Black’s law dictionary generally as …"a standard requiring a showing that the injury was more likely than not caused by a particular stimulus, based on the general consensus of recognized medical thought” Based on this analogous definition of reasonable medical certainty appearing in the labor and employment arena, the determination as to a medical need for intended parent(s) to have the assistance of a surrogate should be based on a general consensus of the medical team if they think the medical need (i.e. for a risk to one’s health, or based on an inability to gestate a pregnancy to term , as examples) is the general consensus of the medical group involved working with the intended parent(s). The American Society for Reproductive Medicine (“ASRM”) provides non-binding guidelines on indicators for surrogacy for intended parent(s), however, such guidelines are not exclusive reasons . The ASRM guidelines provide in part,
Indications for the use of a gestational carrier:
a. Gestational carriers may be used when a true medical condition precludes the intended parent from carrying a pregnancy or would pose a significant risk of death or harm to the woman or the fetus. The indication must be clearly documented in the patient's medical record. Examples of such medical indications would include:
- i. absence of uterus (congenital or acquired)
- ii. Significant uterine anomaly (e.g., irreparable Asherman syndrome; unicornuate uterus associated with recurrent pregnancy loss)
- iii. Absolute medical contraindication to pregnancy (e.g., pulmonary hypertension)
- iv. Serious medical condition that could be exacerbated by pregnancy or cause significant risk to the fetus
- v. Biologic inability to conceive or bear a child, such as single male or homosexual male couple.
b. Gestational carriers may be considered when an unidentified endometrial factor exists, such as for patients with multiple unexplained previous IVF failures despite transfer of good-quality embryos.
Absolute indication for surrogacy is the absence of uterus. Causes for it can be Mayer-Rokitansky-Kuster-Hauser syndrome or history of obstetrics hysterectomy or hysterectomy for gynecological indications such as cervical cancer or endometrial cancer. Apart from this, significant structural abnormalities such as small unicornuate uterus, T-shaped uterus, or multiple fibroids with failed fertility treatment attempts also constitute indications. Women with severe medical conditions (heart or renal diseases) which are contraindication of pregnancy are the other indications for surrogacy. Surrogacy can also be considered as a last resort for the treatment of patient with repeated miscarriage and recurrent implantation failure where all possible tools for self-pregnancy have been exhausted. Biological impossibility to conceive or bear a child which applied to same-sex couples or single men also may necessitate surrogacy.Anyone considering surrogacy should first consider the applicable state law where the process is going to take place to determine if there is a medical need requirement. Speaking to an assisted reproductive attorney early in the process can help clarify your applicable state laws regarding surrogacy. If a medical need requirement exists pursuant to state law, it is important to consult with your IVF doctor to ensure that the doctor deems your case as medically necessary for surrogacy before you embark too far along the process.