ALL IN THE FAMILY: Using a Family Member as A Surrogate
by Shelley M. Tarnoff, JD, LMFCC
e-mail: LawSMT@aol.com

When a family member offers to serve as your surrogate, it may seem like a dream come true. Thousands of dollars in agency fees can be saved, and it is comforting to have personal know- ledge of your surrogate's medical history and background. However, the closeness of the family relationship can lead to other areas of difficulty. It is important to carefully evaluate the situation and to consider the following issues before proceeding.

Surrogate Fee and Expense Reimbursement: While the surrogate may view her participation as an "act of love" and adamantly refuse any financial compensation, the intended parents may feel very uncomfortable with this "imbalance." Alternatives to a surrogate fee include making a contribution to her children's college fund or sending the family on a deluxe vacation after the birth. Similarly, the surrogate may not want to accept reimbursement for out-of-pocket expenses, including child care, maternity clothes, lost wages and transportation. While the surrogate may not want to realize a profit, accumulated expenses can be substantial and place a financial burden on the family. Making regular deposits to the surrogate's checking account (i.e. $200.00/ month) can avoid dealing with receipts and reimbursements. If the surrogate is employed, securing a pregnancy disability policy can provide coverage for lost wages in cases of a prolonged absence from work. Psychological Evaluation: It may seem absurd to schedule a psychological evaluation for your sister, aunt, cousin or niece. However, an experienced mental health professional will be able to provide an independent assessment and help the surrogate take a careful look at whether this is an appropriate choice for her and her family. Most evaluations involve an oral interview as well as written psychological testing. Factors that will be evaluated include the surrogate's motivation, concerns regarding required medical procedures and injections, ability to separate emotionally from the child post-birth, moral and religious attitudes regarding surrogacy, support from family and friends, comprehension and acceptance of medical risks, emotional maturity and stability and expectations regarding the involvement of the intended parents throughout the pregnancy. You can obtain a referral to an experienced mental health professional through your physician, OPTS or Resolve.

Independent Legal Counsel: While family members may seek to keep their dealings informal, it must be remembered that surrogacy involves an important legal transaction. The surrogate is placing herself at risk both medically and financially, and the situation should not be taken lightly. While she may want to waive her right to independent counsel in order to save legal fees, her attorney will serve several crucial functions. An experienced attorney can educate the surrogate about the legal process involved, review the agreement with her best interests in mind and bring up issues that may be difficult for the parties to discuss directly such as financial compensation, disability coverage, expense reimbursement and life insurance provisions. Rather than depending on a verbal understanding, all terms should be explicitly set forth in the written agreement to avoid misunderstandings that may jeopardize family relationships.

Guardianship: A provision for guardianship of the child should be set forth in the surrogate agreement as well as in the intended parents' will, before embryo transfer or insemination. This will clearly set forth the parties' intentions and offer the surrogate protection in case the intended parents predecease the child. The surrogate may have an expectation of being named guardian or godparent of the child. But you may have already chosen a close friend or other family member to serve this function. This issue, though often difficult to talk about, should be thoroughly and honestly discussed before the agreement is executed.

Counseling Facilitation: Using a family member as surrogate means the absence of a surrogate agency to set up medical appointments, make travel arrangements and act as a "support" and "buffer" between the parties. Counseling before the cycle may help parties to voice their expectations and concerns. Is everyone in agreement regarding therapeutic abortion and selective reduction? How many cycles will be attempted? How will the surrogate's obstetrician be selected? Will the surrogate be expected to make any lifestyle changes (diet, exercise, alcohol consumption, etc) during pregnancy? Who will be present at the birth? As in any assisted reproductive cycle, the surrogacy will no doubt take the parties on a roller coaster ride of emotional ups and downs. Unresolved family issues may surface during stressful times. After a failed pregnancy attempt, the surrogate may blame herself for not resting enough, picking up her toddler a few times or not eating right. The intended mother may hide her feelings of loss, while trying to take care of others. Counseling can help the surrogate and intended parents move through the grieving process.

When there are unresolved family issues or motivation based on obligation, using a family member as surrogate can result in difficulties throughout the pregnancy and beyond. The above topics can provide a starting point for discussions. Professional guidance can help to determine whether the situation is an appropriate choice for those involved. With adequate preparation and careful thought, using a family member as surrogate can be a rewarding experience for all involved.

Editor's note: Shelley Tarnoff is an attorney and psychologist in Oakland, California. She is also associated with Pacific Fertility Centers.