Should You Act as a Surrogate for a Friend or Family Member?

Should You Act as a Surro…

There are many reasons people may choose to build their family through surrogacy. The intended parents may be same-sex partners, a heterosexual couple struggling with infertility, surrogacy is not permitted in the parents’ native country, or there may be other constraints that makes them unable to carry a child. Surrogacy offers the opportunity for at least one parent to have a biological connection to the child, and can offer both parents the chance to be involved with the pregnancy almost from the beginning.

Deciding on surrogacy is the first step. Then comes choosing a surrogate. Many people prefer to work with a friend or family member. That’s understandable; it offers the security of working with someone they know and love. Sharing this experience can make your bond even stronger.

If a friend or family member asks you to act as a surrogate, you will probably feel honored that they considered you for such an important role in their family’s story. Or, you may be considering offering your services as a surrogate to loved ones that you have watched struggle to build a family. No matter how you come to the question of surrogacy, there are a number of things you should consider carefully before making this commitment.

Physical Issues When Becoming a Surrogate

Determining your physical ability to carry for another can be evaluated by considering the following questions:

  • Have you already delivered a child of your own?
  • Did you have an easy pregnancy and/or delivery?
  • Has your obstetrician provided you with medical clearance to act as a gestational carrier for another?

If you are able to answer “yes” to these questions, you likely satisfy the physical requirements to be a gestational surrogate.”

If you are a gestational surrogate, you will need to receive fertility treatments in preparation for having fertilized eggs transferred into your uterus. If one (or more) implants, the pregnancy should proceed like any other. Even a typical, healthy pregnancy is a big commitment, of course. You will need to learn about the risks associated with pregnancy, and think hard about whether the commitment is one you are able to make.

Emotional Considerations in Becoming a Surrogate

When you agree to be a surrogate, it is natural for both you and the intended parents to be focused on the positives of the situation, and there are many. They will understandably be thinking about the joy of becoming parents, and you will probably be anticipating the joy of giving them that gift. That said, you should take some time to consider other ways in which surrogacy can impact your relationship.

Sharing this journey can strengthen the bond between you. But it can also affect your relationship in ways you might not expect. As a surrogate, you will have a contractual relationship with the intended parents. But as a family member or friend, you have a pre-existing relationship with dynamics of its own. Layering surrogacy onto that can stir up emotions or conflicts that had been under control.

For instance, if you are carrying a baby for a sibling, issues from your childhood could rise to the surface. If your sibling always felt that you were the “golden child” to whom everything came easy, their gratitude for your help might be mingled with resentment that they need that help—and then with guilt for feeling resentful. Similarly, if your sibling has tended to be domineering or bossy, you may be anxious at the prospect of them trying to micromanage the pregnancy.

For these reasons, parties should adhere to the recommendations made by the American Society for Reproductive Medicine which require psychological evaluations for the intended parents and the gestational surrogate (and her spouse, if married) prior to embryo transfer. A psychologist experienced in third party reproduction can identify possible issues and help the parties address the concerns prior to moving forward. Many times, when there is a prior relationship, whether family or friends, parties want to skip this step assuming their existing bond will overcome any differences in the future. However, their relationship could be the reason why future challenges are more difficult to navigate and resolve.

Setting Boundaries Between the Parties During Surrogacy—and Beyond

You will need to recognize boundary issues that could crop up around the surrogacy. Not only will you have a friend or familial relationship with the intended parents, you will now have a legal and contractual one as well. It’s important to keep those distinct.

It’s natural to expect that, if you become pregnant, the parents will want to be very involved in the pregnancy. You will need to discuss what that will look like, and what you are all comfortable with. Will the parents be at every doctor visit? Will they have input into your diet and health habits? A good rule of thumb is that if you wouldn’t agree to something if the intended parents were strangers, you shouldn’t feel pressured into it just because they’re family.

During the pregnancy, most of the boundary-setting will be on your end. But you’ll need to plan ahead for what happens after the birth, too. Most new parents need some time alone to settle in with their newborn, getting used to their new family unit. Where you used to be central to their story, you may now, for a while, feel peripheral.

You will need to understand and respect the new parents’ boundaries, and it will help to discuss these issues in advance. Again, a psychologist experienced in third party reproduction can help each of you to know what to expect and plan for the future.

Your surrogacy attorney has worked with other surrogates and can direct you to resources that can help you prepare for and deal with these dynamics. Ideally, the intended parents will be doing similar work to identify any interpersonal issues that could complicate the surrogacy process.

Legal Issues for Surrogates

Do you really need an attorney if you’re acting as a surrogate for a friend or family member? Absolutely. As noted above, surrogacy is a legal relationship that can complicate your personal relationship. To avoid problems, you need to make sure everyone involved understands their rights and responsibilities. Relatively few surrogates and intended parents have been through the process before. The guidance of someone who not only understands the law around surrogacy, but has helped many people through it, is essential.

Additionally, the American Society for Reproductive Medicine requires that the intended parents and the gestational surrogate have their own independent legal counsel for review and negotiation of the legal agreement. For this reason, most clinics will not move forward with the surrogacy unless they receive a “Letter of Legal Clearance” indicating that a contract has been signed, as well as confirmation that the parties had their own independent legal counsel.

If you have questions about acting as a surrogate for a family member or friend, or about asking someone close to you to be your surrogate, we invite you to contact Attorney Stephanie M. Brinkley to schedule a consultation. Attorney Brinkley will help you understand the legal issues involved, as well as the emotional, interpersonal, and physical considerations.

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Since founding Brinkley Law Firm in 2011, attorney Stephanie Brinkley has helped families grow and expand by navigating them through the legal challenges surrounding Assisted Reproduction Technology (ART) and Adoption. As an attorney who focuses on f… Read More

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