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Assisted Reproduction

A Family Torn Apart – Do Not Let It Happen To You

It sounds commonsensical, but if you are considering egg donation and/or surrogacy, please be sure to have your donor or surrogate psychologically and medically cleared. This advice is especially applicable if your surrogate or egg donor is a family member.

All too often I am confronted with Intended Parents asking me whether they can avoid having their sister or sister-in-law psychologically screened before pursuing a gestational carrier arrangement with her. For many clients, the desire to avoid the psychological screening is simply because they believe it unnecessary or unduly burdensome and invasive. For others, it is a way to save some money on an already expensive process. However, it is essential and frankly inexcusable not to have a family member fully screened and cleared — legally, medically and psychologically.

I have just been made aware of a terrible case that has occurred in the Northeast. A couple used the non-biological partner’s sister as their gestational carrier. For inexplicable reasons, neither the couple’s attorney nor physician required that the sister/gestational carrier be psychologically screened. Exacerbating the matter, the couple’s attorney also allowed the sister to waive legal counsel during the contract phase. What resulted was the perfect storm as twins were born and the surrogate (the sister of the non-biological dad) wants, at a minimum, visitation rights. Parenthetically, there are some other facts which I have omitted from this summary as they are not relevant at this time.

No one can say with a certainty that the sister would not have been psychologically cleared. Similarly, there is no guarantee that the presence of counsel on behalf of the surrogate would have averted the situation. However, it is commonly understood that the most basic standard of care in this industry is that all surrogates and egg donors must be psychologically cleared and have independent legal counsel available. It is unconscionable to me that any attorney would allow a first-time surrogate to waive her right to counsel. It is similarly beyond the pale that a fertility specialist would proceed with a gestational carrier arrangement without having received psychological and legal clearance.

This case is another reminder of the old idiom about being penny-wise and pound-foolish. The Intended Parents’ attorney failed them as did their physician. Both should be held accountable.

While laymen might perceive little risk in proceeding with a family member, experts in this field should know better. In my experience, familial arrangements are among the most difficult to navigate. I hope this case serves as an important lesson to the community that there is no justification or rationalization that would excuse having a family member screened before proceeding with an assisted reproductive procedure.


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