Guide to Infertility
Options Through Assisted Reproductive Technologies
by: By Andrew W. Vorzimer, Esq.; Lori A. Shafton, Esq.& Milena D.
There are a daunting number of innovative
techniques available today for infertile couples to create their families. As
couples have exhausted clinical and surgical treatments, many have turned to the
assistance of third parties to bring their children into the world. Many are
finding the value in utilizing the assistance of surrogate mothers, egg donors
and sperm donors. In more recent years, couples are taking interest in using
embryos from other more fortunate couples who have an excess number of embryos
The purpose of this article is to provide a basic guide through the myriad of
procedures available, and to provide some information on the important steps
involved in the administration of specific treatments.
I. WHAT TO DO FIRST:
1. Determine Legality of Surrogacy/Egg Donation - Speak to a reproductive
attorney to determine the status of surrogacy and egg donation in your state.
Currently, five states and the District of Columbia find surrogacy arrangements
to be either unlawful or will find the agreements unenforceable. It is important
that the attorney consider the laws of both the state where the Intended Parents
and Surrogate reside.
2. Speak to Professionals - Whether you work with an agency or independently, it
is essential that you work with a team of professionals. This includes a
physician experienced in third party reproduction; a licensed mental health
professional; and a qualified, independent reproductive law attorney. These
professionals will guide you through your options and ensure that you are
protected from the potential pitfalls.
3. Verify Insurance - Confirm that proper coverage is in place for any
catastrophic illness and/or medical consequences of the infertility procedures.
Determine whether your policy, and/or that of the surrogate or donor, will cover
any or all medications and infertility treatments. Many insurance companies are
now denying medical benefits to women serving as surrogates. Other insurance
companies reserve the right to seek reimbursement from the Intended Parents for
any maternity benefits paid on the surrogate's behalf.
4. Itemize Costs - Be sure you understand all of the costs associated with the
selected infertility program. There may be hidden costs associated with fees for
additional treatment cycles, time lost from work, travel to specialists or
5. Obtain Informed Consent - Obtain informed consent agreements from the
surrogate/donor (and if married, their spouses), the fertility program and/or
clinic you have chosen. Consult with an attorney to clarify the risks and
ramifications of executing an agreement with a doctor, clinic and/or agency. Be
sure you have been told and understand all the medical procedures and risks
associated with your particular infertility treatment.
6. Execute Legal Contracts - Work with an attorney knowledgeable in reproductive
law to draft, negotiate and finalize legal agreements as needed with infertility
specialists, agencies and/or third-party donors or surrogates. Ensure that your
surrogate or egg donor is represented by competent, independent legal counsel,
who must issue a legal clearance letter, indicating that the surrogate (and her
husband if she is married) understands and appreciates the issues set forth in
the contract, is proceeding with the arrangement volitionally and without any
coercion or undue influence. In addition to the myriad of issues to be
discussed, the parties must agree upon what contact, if any, the Surrogate will
have with the child.
7. Medical and Psychological Screening - The Intended Parents, the Surrogate and
the Egg Donor must complete a full medical exam which includes a variety of
medical tests, including genetic and social disease testing. Recently, a new
test has been developed to detect retroviruses in semen or blood: Polymerase
Chain Reaction ("PCR"). This new detection system tests the DNA, even in its
earliest states of development, for the HIV virus. The benefit of using PCR is
that retroviruses may be detected after only four weeks of exposure, as
contrasted with the standard testing in which the virus could only be detected
after three to six months of exposure. The result is that the usual six-month
quarantine requirement is no longer necessary, allowing couples to quickly
proceed with their chosen infertility program. In addition to the medical
screening, psychological testing and evaluation is also highly recommended by
many doctors and infertility programs. This screening should be done by licensed
social workers or psychologists who perform a variety of tests to determine the
suitability of the surrogate and donor for the Intended Parents, among other
issues relevant to the chosen method of third party assisted reproduction.
8. Keep a Sense of Humor - Try not to let the clinical nature of the following
list of treatments discourage you from having fun with your partner. Work
together to keep a positive attitude, and do not allow an infertility problem to
take the magic out of making your baby.
II. TYPES OF ASSISTED REPRODUCTIVE TECHNOLOGIES
The following overview of rapidly expanding innovative treatment technologies is
intended to provide Intended Parents with a perspective of how medical protocols
will coordinate with a third-party reproductive arrangement. As a result, the
technologies are discussed with an eye towards coordinating with a surrogate
mother and/or egg donor in order to achieve a pregnancy.
SURROGACY GENERALLY: Despite negative press reports and myths associated with
surrogacy, more than twelve thousand couples in the United States have realized
the benefits of conceiving healthy children through surrogacy. There are several
forms of surrogacy arrangements:
In "traditional surrogacy," a surrogate mother is artificially inseminated with
the sperm of the Intended Father. This method, chosen by many women incapable of
providing viable eggs or carrying a child to term, is often the most
cost-effective form of surrogacy. It is also the least invasive method for a
surrogate, who can avoid painful shots and other medication associated with
In "gestational surrogacy," in vitro fertilization is used to form embryos with
the Intended Parents genetic material which are then transferred to surrogate.
This procedure is often used when the Intended Mother is infertile due to
blocked fallopian tubes or endometriosis.
In "gestational surrogacy with egg or sperm donation," the Intended Parents
contract separately with a surrogate and an egg or sperm donor after screening
and testing of the parties has been completed. Embryos are formed through in
vitro fertilization, and the fertilized embryos are transferred to the surrogate
in order to carry the child to term.
There are a myriad of medical, legal and psychological issues surrounding the
formation of a surrogacy arrangement, many of which are outside the purview of
this article. It is important that surrogates are properly tested and screened
by professionals well in advance of entering into a formal surrogacy contract.
Surrogacy programs vary in the screening and selection of surrogates. It is
critical that Intended Parents are properly informed about the procedures
involved in the formation of the surrogacy arrangement, the medical issues
surrounding the conception of the child, and the legal procedures involved in
the finalization of parental rights. The laws in the United States vary
regarding the regulation and legality of surrogacy, and it is essential that all
parties enter into a valid surrogacy contract to obtain informed consent prior
to the initiation of any medical procedures involving infertility.
A. IVF / GESTATIONAL SURROGACY
The in vitro fertilization process itself was born in 1978 by Drs. Steptoe and
Edwards and was marked with the arrival of Louise Brown. Through this procedure,
the Intended Father's sperm and the Intended Mother's egg are fertilized in the
laboratory, and the fertilized embryo is transferred into the uterus of either
the Intended Mother or the Surrogate.
1. "Fertility drugs" are administered to stimulate the ovaries to produce an
optimal amount of eggs. Dosage and types of drugs vary, and are most often taken
for 7 to 10 days. The most frequently administered ovulation drugs include
Clomid, Humegon, Pergonal and a follicle stimulating hormone known as Metrodin.
In some cases, Lupron is given to suppress and/or control ovulation induction.
Ultrasounds are used to observe the development of ovarian follicles, in order
to estimate the number of eggs which will be produced. Blood tests are used to
record levels of estrogen (should increase as follicles develop), progesterone
(should be low after ovulation) and/or luteinizing hormone (LH) (dramatic
increase indicates ovulation). When the follicles have properly matured,
surrogate mothers are given a final hCG shot (a hormone known as "human
chorionic gonadotropin"), and the egg retrieval process will occur approximately
36 hours later, the time when most women normally ovulate.
2. "Egg Retrieval" is accomplished via two basic methods. First, eggs may be
removed in a physician's office or an outpatient surgical center through a minor
surgical procedure commonly referred to as a transvaginal ultrasound aspiration.
In this case, an ultrasound probe is used to guide a needle into the follicles
and suction eggs. In rare cases, eggs are removed through laparoscopy, which
usually requires a general anesthetic, and requires an small incision in the
lower abdomen to guide the laparoscope into the ovarian follicles.
3. "Egg Fertilization" occurs either immediately after the eggs are aspirated,
or several hours to one day after the eggs are retrieved. Eggs are examined for
maturity and then placed in a laboratory dish with the Intended Father's sperm.
The laboratory dish is kept at 98.6 degrees. In cases where sperm problems are a
factor, intracytoplasmic sperm injection (ICSI) may be accomplished by injecting
a single sperm into one of the Intended Mother's eggs in order to achieve
fertilization. Within 12 hours, a fertilized embryo should have divided into two
cells. Eight-cell embryos, considered the optimal number of cell divisions prior
to transfer into the uterus, usually occurs within 44 to 72 hours.
4. "Embryo Transfer" involves the transfer of fertilized embryos into the uterus
of the Intended Mother or the Surrogate Mother with a long, thin catheter. The
process is accomplished on an outpatient basis within about 10 to 20 minutes.
Couples must decide how many embryos to transfer during each embryo transfer
cycle, as well as whether to cryopreserve (freeze) excess embryos.
5. "Selective/Fetal Reduction" - For couples involved with in vitro
fertilization or any other innovative treatment technology involving the
transfer of more than one embryo per cycle, selective reduction is one of the
most difficult decisions a couple may have to face during the course of
treatment. Selective reduction involves the removal of one or more fetuses,
either due to a physical/genetic abnormality or to reduce a pregnancy, e.g. from
a triplet to a twin pregnancy. While most couples are prepared to welcome one or
more children into their home and anxiously await positive pregnancy results,
far fewer are prepared for the significant risks associated with multiple
pregnancies. Bed rest, miscarriage and premature birth are just a few of the
risks commonly associated with multiple births. In the event a selective
reduction is performed, there is still some risk to the viability of the
The number of embryos transferred per cycle is based upon the physician's
recommendation regarding, among other things, the quality of resulting
fertilized embryos. Some couples utilize preimplantation genetic diagnosis, to
detect potential genetic abnormalities prior to transfer. Other couples minimize
the potential for selective reduction by asking the physician to transfer only
two embryos per cycle. However, there may be important medical reasons to
transfer more than two embryos in order to achieve a pregnancy. Due to the
increased risks associated with multiple births, it is critical that the number
of embryos transferred is discussed in detail with the infertility specialist
prior to beginning treatment. Moreover, the issue of selective reduction should
be addressed in the surrogacy contract.
A GIFT (gamete intrafallopian transfer) transfer involves the injection a
mixture of eggs and sperm directly into the fallopian tube of the surrogate
mother. After the injection, fertilization and embryo implantation occurs as it
would in a normal pregnancy.
This procedure is one of the only methods condoned by the Catholic church, which
denounces the use of artificial technologies to create children as immoral,
unethical and unnatural. According to the Vatican, sexual intercourse is an
essential element of reproduction, with conception occurring within the woman.
To accommodate this, physicians use a specially designed condom which contains
several holes. Following intercourse, the husband's remaining sperm in the
condom is placed in a dish with eggs retrieved from his wife. Both are
immediately placed back into the wife's fallopian tubes so conception occurs
within the body. Because fertilization occurs within the fallopian tube,
conception is construed as a gift of life from God as in any pregnancy. The GIFT
procedure is particularly useful for women with endometriosis and where
infertility is caused by male and/or immunological problems. There are usually
two eggs transferred during each GIFT procedure. The success rate is generally
about 5-10% higher than IVF success rate.
In rare cases, some physicians recommend using a zygote intrafallopian transfer
(ZIFT). This procedure involves the removal of eggs through aspiration,
fertilization in the laboratory, and the subsequent transfer of fertilized
embryos to the fallopian tube rather than the uterus. This method may be useful
in cases where the infertility problem is based upon particularly poor egg
quality, or a male factor where the sperm fails to properly penetrate the egg.
D. ARTIFICIAL INSEMINATION / TRADITIONAL SURROGACY
Artificial insemination involves the transfer of sperm directly into the
surrogate mother's reproductive tract. This process is most successful in cases
where the couple's infertility problem has been identified as the inability of
the woman to produce usable eggs or the functional failure of her ovaries.
1. "Testing/Evaluation" - In order to determine whether an artificial
insemination procedure will be advantageous, a complete medical evaluation is
required. First, a semen analysis is conducted to determine sperm quality, count
and motility, and a sperm antibody test is also performed. Other basic disease
testing is also recommended, including that for human immunodeficiency virus
(HIV), hepatitis and sexually transmitted disease testing. The surrogate mother
must also undergo a pelvic exam and disease testing. It is possible to confirm
that the fallopian tubes are free of obstruction through a hysterosalpinogram,
hysteroscipy or laparoscopy, which involve the surgical insertion of tiny
catheters to allow a physician to view the inside of the tube.
2. "Ovulation" - It is critical that the insemination takes place on the
appropriate point of ovulation during the surrogate mother's cycle, which is
determined by the physician with the surrogate's assistance. Ovulation is
usually detected through an LH surge kit and basal body temperature (BBT)
charts. If the surrogate does not ovulate regularly, the physician may recommend
medication to regulate and induce ovulation.
3. "Insemination" - The most common form of artificial insemination involves the
injection of sperm into the surrogate mother's cervix by a physician or nurse
with a syringe. Some surrogates, if comfortable with the process, elect to
perform the insemination privately at home using a syringe provided in a home
insemination kit. A second method, intrauterine insemination (IUI), involves the
injection of sperm directly into the uterus. With an IUI insemination, the sperm
is "washed" prior to the insemination in order to separate sperm from the
seminal fluid which can cause severe pain if injected directly without prior
treatment. Washing and releasing sperm into a sterile fluid prior to injection
into the cervix also avoids infectious chemicals and bacteria which may
otherwise cause added complications or infection. The type of insemination
procedure chosen should be identified in the surrogacy agreement and should be
explained in any medical informed consent document.
III. FINALIZING YOUR PARENTAL RIGHTS
State statues vary regarding the type of legal procedures required to finalize
parental rights; that is, the method to ensure the Intended Parents' names are
placed on the birth certificate. As a result, it is important to identify the
type of finalization documents needed. For example, in California egg donation
arrangements, where the Intended Mother is also the Recipient Mother who carries
the child to term, there are no legal documents needed to finalize parental
rights. California recognizes the Recipient Mother as the legal mother, and her
name is therefore placed directly on the birth certificate with her husband as
the legal parents.
With respect to IVF or AI surrogacy arrangements, there are specific steps that
must be accomplished in a timely manner to ensure that parental rights are
finalized and the names of the Intended Parents appear on the original birth
certificate at the time of the birth. Due to the legal complexities involved in
finalizing parental rights, it is advisable to seek the assistance of an
experienced reproductive law attorney.
1. Timing - It is important to begin the process of finalization of parental
rights approximately halfway through the pregnancy. On occasion, couples express
a desire to wait until the last trimester to file legal documents. However,
delaying the initiation of the legal process could cause problems with the
hospital and insurance paperwork, creating unnecessary paperwork and anxiety.
This is particularly relevant due to the fact that advances in medical
technologies have resulted in an increased number of multiple births. Thus, it
is critical to begin the process early enough to allow time for all the parties
to review and sign relevant documents, as well as ample time (usually about a
month) for individual county courts to process the legal judgments.
2. Circulate Pleadings - All parties, including the Intended Parents, the
Surrogate and her Husband, as well as their respective counsel, must review and
sign the legal documents prior to filing them with the court. Most counties
require stipulations and judicial forms authorizing the court to enter the
Judgment without a formal hearing. Only in rare instances do judges require a
personal appearance of any of the parties stipulating to a Judgment of Maternity
and Paternity. Each county requires specific documents in order to obtain a
proper and timely judgment.
3. Legal Filings & Fees - Pleadings are filed in the county where the child will
be born. In most states, hospital administrative staff are responsible for
registering births with the local Department of Vital Statistics. As previously
discussed, each county varies with respect to the type of documents to be filed,
as well as the amount of time it will take for the court to process the final
judgment. In most cases, judgments are obtained within a month. Counties vary
regarding filing fees for purposes of stipulated judgments, with fees ranging
from $400 to $700 for filing the complaint and issuance of several copies of the
4. Hospital Documentation - Once the legal judgment is obtained, hospital
administrators appreciate an advance certified copy of the judgment for the
medical file as well as a copy for the birth certificate administrator.
Attorneys also should provide a letter with the accompanying legal paperwork
providing identifying information about the Intended Parents and the Surrogate.
This information provided to the hospital staff and insurance companies may also
be necessary during the pre-registration stage at the hospital, as well as for
obtaining delivery room and nursery arm bands required by most hospitals in
order to have access to the baby.
5. Obtaining Birth Certificates - Birth certificates are issued by the local
Department of Vital Statistics and are then recorded in state archives. In most
cases, original birth certificates are received within 10 days to 2 weeks. For
international couples, this process may be expedited in order to finalize
parental rights and obtain valid passports, allowing them to return to their
home countries in a timely manner with their babies. In the event that a birth
certificate must be amended due to post-birth judgments or out-of-state births,
an additional 6 to 8 month delay is typical in order to receive an amended birth
E. SPERM AND/OR EGG ("OOCYTE") DONATION
In the event that the Intended Parents are not able to contribute genetically to
the formation of embryos, many couples have considered utilizing sperm and/or
egg donors to form embryos. In order to avoid future disputes, it is important
that an attorney and/or agency maintain proper confidential records regarding
medical screening and legal contracts.
In the event that a medical question presents itself in the future necessitating
contact with a donor, it is important that an objective third-party, often an
attorney or agency, maintains a confidential record of current addresses for all
parties involved in a donation agreement for perpetuity. Finally, even if the
donor is known (i.e., a close friend or relative), it is important the risks and
ramifications of the agreement are memorialized in writing to avoid
misunderstandings and disputes.
1. Sperm Donation
Couples who have experienced failed artificial insemination procedures and have
identified male factor infertility may consider contracting with a sperm donor.
Sperm donation is most successful in cases where the couple's infertility
problem has been identified as the Intended Father's low sperm count and/or poor
motility. It is also one of the most affordable and least invasive methods of
infertility treatment. Artificial insemination is also useful for diabetics
suffering from retrograde ejaculation (where the sperm is released incorrectly
into the bladder), men suffering from impotence or semen deficiencies. Donor
sperm is injected directly into the recipient mother's cervix. It is important
to properly evaluate male factor infertility through a complete physical
examination by a physician.
If a sperm donor is considered, a variety of sperm banks offer donor screening
and semen storage services which must be carefully evaluated. The medical
history, age and medical testing results should be evaluated prior to
contracting with a sperm bank or specific donor. Although most sperm banks
operate on an anonymous donor basis, an extended profile of the donor's
personality and interests is often available. Couples may consult an attorney to
review any agreements, informed consent documents or waivers provided by the
In other cases, couples decide to work with a known donor who is either usually
a friend or relative. In these instances, a sperm donor agreement is usually
drafted, outlining such issues as confidentiality, medical and psychological
screening, potential parental rights and compensation. As a final note,
finalization of parental rights with respect to the sperm donor is generally not
necessary in most states due to either a statute and/or agreement terminating
any rights the donor may have to the child.
2. Egg Donation
Egg Donation is a relatively new procedure typically involving the removal of
one or more eggs from a donor, fertilizing the eggs with the sperm of the
Intended Father and implanting fertilized embryos into the uterus of the
Intended Mother. This procedure is useful for women who have experienced
premature ovarian failure or are otherwise unable to produce healthy eggs. As
discussed in further detail below, in cases where the Intended Mother is unable
to carry a child to term, some couples will elect to transfer the fertilized
embryos to a surrogate mother.
Similar to sperm donation discussed above, donated eggs are most commonly
obtained through agencies experienced in the screening and testing of suitable
donors. It is important that the specific protocol of the agency is explained in
detail prior to contracting with a donor. Some couples obtain eggs through known
donors, most frequently close friends, sisters or other relatives. Finally, as
with sperm donation, an agreement is usually drafted, outlining such issues as
confidentiality, medical and psychological screening, potential parental rights
and compensation. Again, finalization of parental rights with respect to the egg
donor is not necessary due to the agreement terminating any rights the donor may
have to the child.
1. "Medical Testing & Screening" - Prior to entering into a legal contract, an
egg donor completes a full medical exam which includes a variety of medical
tests, including genetic and social disease testing. Some programs recommend
that donors have given birth to at least one child, are between the ages of 21
and 34 and are not receiving any public assistance. Psychological testing and/or
evaluation is also recommended by some doctors and infertility programs. It is
important that a donor is fully screened prior to entering into a legal contract
in order to avoid financial commitment to a donor who is not capable of viable
2. "Medication" - Egg donors are given hormones by injection approximately two
to three weeks prior to egg retrieval. The monitoring physician will carefully
determine the development of eggs through ultrasound treatments and blood
hormone tests. As the donor's eggs are stimulated in this manner, the recipient
mother is also given medication to synchronize her cycle with the donor's cycle
in order to allow for proper implantation of fertilized embryos. In some cases,
the recipient mother is given a hormone called estradiol in order to thicken the
lining of the uterus in preparation for implantation.
3. "Egg Retrieval" - As previously discussed above, eggs are retrieved through
an ultrasound guided needed in a minor surgical outpatient procedure. The
aspiration of eggs occurs approximately 36 hours after the administration of the
final hCG shot. Retrieved eggs are examined by the laboratory, graded for
maturity, and prepared for in vitro fertilization as discussed above.
F. ENUCLEATED CYTOPLASMIC TRANSFER
This innovative treatment technology, currently conducted by a few physicians
and clinics on an experimental basis, involves the transfer of cytoplasm from
the donor's eggs to eggs removed from the Intended Mother's body through
aspiration. This unique procedure allows a woman who has age-related problems
with her eggs to use her own genetic material within the cytoplasm of a younger,
healthier woman's egg. Whether a resulting child will have any physical or
psychological abnormalities as a result of the transfer of cytoplasm remains
IV. TAKING THE NEXT STEP TOWARD PARENTHOOD
The abundance of options available to couples willing to undergo infertility
treatment to create their children mystify even the most arduous researcher.
There are subtle variations to each and every one of the innovative treatment
technologies discussed above, and this article serves merely as a guide through
the confusing terminology and technologies currently available to hopeful
parents. What is most important is that each week children are born to parents
who previously never thought they would experience the joy of childbirth and
their own children. Due to the complicated issues presented by medical
technology growing at such record speed, careful and informed decisions must be
based on current information with the guidance of experienced attorneys,
counselors and physicians.