Frequently Asked Questions About Surrogacy in South Carolina

As assisted reproductive technology (ART) attorneys, we hear a lot of questions about surrogacy—from intended parents, from prospective surrogates, and even from judges who are trying to learn more about this rapidly-evolving area at the intersection of medicine and the law. Below are some of the questions about surrogacy that we hear most often, along with the answers.

When we refer to a “surrogate” in these questions, unless otherwise specified, we are talking about a gestational surrogate. A gestational surrogate is a woman who carries a pregnancy but is not genetically related to the baby.

Can any woman be a surrogate?

The requirements for serving as a surrogate are established by the American Society for Reproductive Medicine. They include:

• Being of legal age, and ideally between the ages of 21 and 45. There are risks with advancing maternal age, so if someone older than 45 wants to serve as a surrogate, she must be fully aware of and consent to those risks.
• Typically, the surrogate must usually have carried at least one uncomplicated pregnancy of her own to term before acting as a surrogate for someone else.
• Ideally, the surrogate will have had no more than five previous deliveries, and no more than three previous births by C-section.
• The surrogate must have a stable family situation and adequate personal support so that she will be able to manage the additional stress associated with pregnancy.

Certain surrogacy agencies may have other requirements, such as requiring a surrogate to be a U.S. citizen or lawful permanent resident (green card holder).

What kinds of things disqualify someone from being a surrogate?

One of the most common disqualifiers is having certain medical conditions. Medical conditions that typically preclude someone from being a surrogate include:

• Polycystic Ovarian Syndrome (PCOS)
• Type I diabetes or a history of gestational diabetes
• A history of preeclampsia
• Endometriosis
• Unhealthy Body Mass Index (BMI)
• Active drug addiction or substance abuse
• Underlying medical conditions that require medications that are unsafe to use during pregnancy

Other factors, such as living in a state whose laws are not favorable to surrogacy, or living in an unsafe home environment, may also disqualify a woman from acting as a surrogate.

Can you be treated for mental illness and still be a surrogate?

Any pregnancy is an emotional time, and surrogacy can carry its own emotional challenges. You also need to be able to schedule your medical appointments, attend them consistently, take medication on schedule, and of course, have the mental capacity to be able to legally consent to medical procedures and the legal aspects of surrogacy. If you have a mental health condition that interferes with your ability to do any of those things or remain emotionally stable throughout a pregnancy, you should not be a surrogate.

In addition, you should be aware that most agencies will require you to be off of antidepressants and other mental health medications for a period of time before becoming pregnant and throughout the pregnancy. If this will pose a problem for you, you should not be a surrogate.

As an Intended Parent, how can I be sure that my surrogate is pregnant with my child, not with a baby she and her partner conceived?

The short answer is that multiple measures will be put in place to prevent that from happening. Your surrogate will take medication to prevent her from ovulating, which means that she would be unable to conceive a child with her own egg.

In addition, your surrogate will be on a strict regimen of fertility medications to regulate her cycle and prepare her body for the transfer of one or more embryos. Because she will be especially fertile at this time, your surrogacy contract will require her to abstain from sexual intercourse in the period leading up to the transfer of the embryo(s) and for a period of time after the pregnancy is confirmed, typically two weeks. Consequently, she will likely be given a pregnancy test prior to embryo transfer out of an abundance of caution. The medical protocol ensures that any subsequent pregnancy is a result of the embryo transfer.

Does the surrogate share blood with the baby she is carrying? What if their blood types are not compatible?

In a word, no. The blood of the surrogate and baby do not mix during pregnancy; they are separated by the placental membrane. The placenta is the organ that forms in the uterus during pregnancy, and the baby receives oxygen and nutrients from the mother through the placenta.

Blood mixing can occur during childbirth if there is a placental breach. If that happens, the baby may develop jaundice or a related condition, which is easily treatable and should result in no lasting harm to the baby.

Will the baby receive any genetic material or traits from the surrogate?

With a gestational surrogate, (also called a gestational carrier), the baby’s genetic material comes from the providers of the egg and sperm that created the embryo, one or both of which may be the intended parent(s). The gestational surrogate does not contribute any genetic material to the baby. While some cells containing genetic material can cross the placental barrier from the surrogate to the fetus or vice-versa, the genetic makeup of the baby is not affected.

With a so-called traditional surrogacy, the pregnancy results from the surrogate’s egg, so she would have a genetic relationship to the baby she is carrying. However, traditional surrogacy is increasingly rare, in part because it can complicate legal matters for the surrogate to have a genetic tie to the child.

Can sperm from the surrogate’s husband penetrate the embryo she is carrying for the intended parent(s)?

No. Once an egg is fertilized with sperm, the resulting embryo forms an impermeable shield that cannot be penetrated by sperm from the surrogate’s husband or anyone else. In addition, remember that the surrogate and her spouse must wait for a period of time after the confirmation of a successful embryo transfer and pregnancy before having intercourse. In short, there is no danger of the surrogate’s husband contributing genetic material to the embryo.

Who should I contact with legal questions about surrogacy in South Carolina?

If you have more questions about surrogacy that were not answered here, or have questions that relate to legal aspects of surrogacy, speak with an experienced assisted reproductive technology attorney. Contact Brinkley Law Firm LLC to schedule a consultation.