Surrogacy and Paternity Testing: What Are They, Really?

The word "surrogacy" gets thrown around a lot, but not everyone fully understands what it is. How do you define surrogacy? And if a gay couple wants to father a child, which partner should donate the sperm?

Even paternity testing is common knowledge - in fact, it is the stuff many telenovelas are made of. But what are its legal implications?

Surrogacy takes place when a woman carries a baby for another person or couple, brining the pregnancy to term. This woman is referred to as the surrogate and it is her who enables couples who cannot have children to become parents.

Paternity DNA testing and even maternity testing is often used by couples who have sought the help of a surrogate; they may resort to DNA testing for simple peace of mind or even for legal/ immigration purposes as shall be discussed further on in this article. Sometimes couples may seek the help of agencies or firms to find a surrogate or they may ask relatives to act as surrogates. In other cases still they may undertake their own search for a surrogate.

Types of Surrogacy

Surrogacy can be of two types.

  • Traditional surrogacy:  this happens when a woman, called the surrogate mother, is artificially inseminated by a sperm donor. Traditional surrogacy is more cost effective as it does not require IVF. It is often used in cases of low sperm count or where sperm cells are too weak to swim the entire way to the ovum following ejaculation. Implanting the sperm directly into the fallopian tubes can decrease the distance the sperm needs to swim thereby increasing chances of reaching the ovum and fertilizing it. Fertilization in the form of artificial insemination takes place by implanting the sperm cells directly into the fallopian tubes. In this case, the child would have inherited half their genetic material from the donor father and the other half from the surrogate mother. The surrogate carrier is thus, also the biological mother of the child. At birth, the surrogate mother relinquishes all her rights as a parent and the child becomes in all rights the child of the couple who have sought surrogacy.
  • Gestational surrogacy: this happens when there is an egg donor and a sperm donor; the egg donor is independent of the surrogate mother and thus, fertilization must take place using more costly IVF (In Vitro Fertilization) treatment. A woman seeking gestational surrogacy would need to undergo hormone treatment to stimulate the release of multiple eggs with every menstrual cycle. Fertilization between the egg and the sperm are done under laboratory conditions and the embryo implanted into the surrogate mother’s uterus. The child is entirely unrelated to the surrogate and is in all respects the biological child of the egg and sperm donor.

Options for surrogacy

Lesbian or gay couples wishing to have children can find both types of surrogacy indeed attractive. For lesbian couples, gestational surrogacy means that both can be directly involved in the embryo’s development; one partner would be the egg donor whilst the other partner would be the recipient for implantation, brining the pregnancy to term.

Other couples might choose to have family members involved; for example, in a gay couple, one partner might request a sister to be the surrogate but the other partner (who must be unrelated to the surrogate to try to maximize the genetic health of the child) would be the sperm donor.

Paternity testing for peace of mind

Given the circumstances under which surrogacy takes place, couples may choose paternity testing as a means of having peace of mind, ensuring that the fertilized egg from the right people were implanted. There have been cases where mix ups have occurred and couples were implanted with someone else’s’ embryo. The complications could be manifold; it could mean that the receiver of the fertilized egg became a surrogate for another couples’ baby without even being aware of this till a later stage.

Other rare cases involved the birth of non identical twins. The mother and father decided to have a paternity DNA test done on both twins only to find that the twins had different fathers.

Gay couples may chose to both be sperm donors for a single pregnancy. The eggs fertilized using the sperm from both fathers are implanted into the surrogate mother. Once the embryo develops and the baby is born, they may need a paternity DNA test to determine which of the two men is in fact the biological father of the child.

If twins are born they may need a paternity test to confirm whether they have each fathered one of the twins or whether the twins are the biological children of just one father. Several DNA testing companies like easyDNA (http://www.easydna.com.au), The Genetic Testing Laboratory, International Biosciences and others offer surrogacy DNA testing. They provide full guidelines and support besides fully accredited testing

Immigration and legal cases

In some cases it becomes crucial to prove the biological relationship of the donors to the child born. Often, people seeking surrogacy will have the procedure take place in another country as the option may not be available in their own. Once they have had the baby, they need to take their child to their home country where they will need to prove to the authorities that they are the parents of the child.

Immigration DNA testing may in such cases by mandatory as a legal proof of biological relationship and a  DNA test becomes evidence that the child is the biological child of the intended parent. Both paternity tests and maternity tests may be used in such cases, depending on the situation.

In the USA, in order to acquire citizenship, children born to foreign surrogates must be related to at least one parent who is a US citizen. In some cases, foreign surrogates have proved problematic, especially when the embryo was not conceived from the donor parents and the clinics involved have substituted eggs and/or sperms from another third party donor. Following DNA testing, the child was shown to be unrelated to both parents and thereafter deprived of any nationality/citizenship.

Procedure for a legally verified test

Paternity testing may also be done in order to ensure the name of the correct parent/s is put down on the birth certificate of the child. To have a DNA test result that can be used in cases of immigration or for any other situation where a legal test result is required, sample collection, handling and documentation must involve a very strict procedure known as a “chain of custody”. 

All samples must be collected by a third party professional, ideally a doctor or nurse, who also acts as witness to the procedure. He or she must furthermore attest to the origins of every DNA sample, declaring this in writing; identification of all parties is further sustained and authenticated by the presentation of legally accepted identity documents and passport photos for all people taking part in the test.  

Different countries take different positions

Surrogacy is a very thorny issue and abounds in ethical and moral debates. For those who wish to have children and form a family, surrogacy could be a dream come true but there are others who vehemently oppose surrogacy and all types of assisted reproductive technologies.

The main problem with surrogacy is the fact that it requires the fertilization of a number of eggs but not all of these are implanted. Normally the number of eggs implanted is of around 6 but ten or more eggs may fertilized. Multiple eggs are fertilized in order to have “spare” embryos to counteract chances of implantation failure.

Any extra fertilized eggs are stored just in case and further future implantations are needed. If once implanted, the embryo develops, the other fertilized eggs are destroyed. From an ethical perspective, many people view life as beginning at the time of conception. This means that the destroyed eggs are essentially multiple abortions of human lives.

Italy, Poland, Estonia are amongst the countries where surrogacy is banned. In other countries it is entirely unregulated (this includes the Czech Republic), whilst other countries yet have rather strict procedures whereby social workers and physicians are involved in the procedure (such as the UK).

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