More than ever, people are turning to assisted reproduction to build their families. One such path is commonly known as ‘surrogacy,’ where a gestational carrier undergoes an embryo transfer to carry a child to birth for the intended parents. Intended Parents and the surrogate may find each other directly, known as an independent surrogacy, or through an agency that matches and coordinates the surrogacy journey for the parties. In order for the fertility clinic to proceed with the embryo transfer to the surrogate, the clinic requires the parties to complete medical, psychological, and legal clearance. The parties will be working with the fertility clinic, a therapist, an agency if applicable, and an independent attorney for the intended parents and the gestational carrier. An escrow agent may also be involved at this stage to navigate any expenses related to the clearance process. This article outlines what is required for the medical, psychological, and legal clearance in order to proceed with an embryo transfer and start your surrogacy journey.

MEDICAL CLEARANCE

To be approved to be a gestational carrier, interested candidates will undergo medical screening at a fertility clinic. The surrogate may complete such medical screening before matching with a family, such as through the agency they are working with, or they may do so once they have found a family to work with and are already matched. Such medical screening includes review of prior medical and social history either by the clinic and/or their OBGYN,, a physical examination, blood work, drug screening, STD and infectious disease testing, and genetic testing. Such testing varies based on the type of embryo the intended parents plan to use, such as from donated material or their own. This process can take several weeks depending on the medical records, the surrogate’s schedule, the clinic, and the status of the genetic material. Though the U.S. Food and Drug Administration (FDA) does not require screening or testing of surrogates like they do for egg or sperm donors, it is standard practice for fertility clinics to require the surrogate to complete medical screening and testing prior to proceeding in a surrogacy arrangement. 

PSYCHOLOGICAL CLEARANCE

The fertility clinic will require the surrogate to complete psychological counseling prior to proceeding and is likely to require the intended parents to undergo counseling as well. The fertility clinic will have recommended providers that are available in your state or virtually, and often the same therapist may meet with all parties. A common test used in the psychological evaluation of a surrogacy candidate is a Personality Assessment Inventory (PAI). The PAI is a tool that psychologists use to help diagnose clinical disorders and screen for psychopathology in clients by looking at things like anxiety, stress, alcohol or drug concerns, treatment rejection, aggression, dominance, warmth, inconsistency, and negative/positive impressions.  The surrogate’s spouse will also be involved in any counseling. It is not uncommon for the surrogate and their spouse to have counseling, for the intended parents to have counseling, and then for all parties to meet together with a counselor to discuss the planned surrogacy arrangement. Though counseling may not be required beyond the point of ‘clearance’, parties may elect to work with a therapist as they go through the surrogacy process and once a child is born as well to help navigate the mental health aspects of their surrogacy arrangement. A Gestational Carrier Agreement may even outline funds that are set aside for any counseling requested during the process or for conflict resolution.

Fertility clinics rely on guidance from the American Society of Reproductive Medicine (ASRM) in setting the standard for such medical screening and psychological counseling, such as in their ‘Recommendations for practices using gestational carriers” published on July 1, 2022. You can find other ASRM guidelines here and statistics and resources on Assisted Reproductive Technology from the Centers for Disease Control and Prevention here. 

LEGAL CLEARANCE

Either at the same time or upon completing the medical and psychological clearance, the parties will turn to drafting, negotiating, and signing their Gestational Carrier Agreement to confirm the terms of their surrogacy journey. The gestational carrier (and their spouse/partner) and the intended parents will have their own independent legal counsel to help them navigate the complexities of the Gestational Carrier Agreement. The Gestational Carrier Agreement will contemplate state-specific parentage and relinquishment of rights, the genetic material used for the surrogacy, aspects of required medical and psychological screening, the process of embryo transfer, compensation and reimbursement, health insurance and medical payments, life insurance , communication between the parties, travel restrictions, and more. Once all parties have signed the Gestational Carrier Agreement, the attorneys will provide the fertility clinic with legal clearance for the parties to proceed with the embryo transfer. The clinic receive instructions on how many embryo transfers are approved over a certain time period, and that a contract was signed, but does not receive a copy of the actual Gestational Carrier Agreement, which is confidential between the parties. Such legal clearance is submitted as Legal Clearance Letter to the clinic from both or one of the attorneys, and is required with the embryo transfer for the surrogacy process. 

As the laws surrounding assisted reproduction are state specific, and federal regulation, policy, and case law continue to change the legal landscape of reproductive health, it is imperative to work with an attorney that specializes in reproductive law in your state and to have independent counsel in any arrangement. You can find a knowledgeable and trusted attorney specializing in reproductive law in your state through the Academy of Adoption and Assisted Reproduction Attorneys directory here. As each state has its own laws related to surrogacy, and people are turning to surrogacy across state lines and matching independently without agencies, it is paramount to understand the clinic requirements and your specific state laws.

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