Q: How will I know the child will be genetically related to me?
A: One of the reasons that intended parents choose surrogacy instead of adoption is to have a child who is genetically related to the intended parents. Unless you are using donated eggs and donated sperms, the child born through surrogacy will almost certainly be related to you. If you are using your own sperms and donated eggs, half of your child’s DNA will come from you. If you are using your partner’s sperms and donated eggs, or your partner’s eggs and donated sperms, your child will be genetically related to your partner. And, finally, if you are using your own embryos made from you and your partner’s sperms and eggs, the child will be 100% genetically related to you and your partner.
However, the reason why I qualified the above with “almost certainly” is because no medical process is 100% accurate. It is possible that the child born from surrogacy is not related to either you or your partner even if you used your own sperms or eggs. This is not just a theoretical possibility; I’ve seen and heard about intended parents whose DNA test performed on the child after birth showed none of the intended parents were related to the child. As you can imagine, the emotional devastation is indescribable.
How can that happen?
- The clinic makes a mistake and uses another intended parent’s sperms or eggs during IVF.
- The clinic uses a wrong embryo while transferring it to the surrogate’s uterus.
- The surrogate mother has sexual intercourse while she is undergoing endometrial preparation and embryo transfer. This results in pregnancy.
- A baby is switched inadvertently after birth by a hospital staff.
With exception of the last possibility, there is really no easy way to remedy the situation after the child is born. In addition to the obvious emotional distress, the intended parents may not be able to bring the child back to their home country if DNA test is required to establish genetic linkage to the parents.
What intended parents can do is to minimize such possibilities. Here are some suggestions:
1) Use NIPP Test
NIPP (Noninvasive prenatal paternity) test is a test that can help you determine whether you (or your partner) is genetically related to the fetus while the surrogate is pregnant. At about 8 weeks of pregnancy, a doctor takes a sample of your surrogate’s blood. He or she also takes a cheek swab from you or your partner, and send these samples to a lab. The lab is able to isolate a small amount of the fetus’s DNA in the surrogate’s blood and compare it to your or your partner’s DNA from the cheek swab. This test is non-invasive and does not pose a danger to the fetus. It is about 99.9% accurate, and intended parents can have a peace of mind knowing that the child will be genetically related to them. If the test comes back negative, the intended parents can think about what they want to do with the fetus before the pregnancy progresses further.
2) Check the Surrogacy Contract and Vet the Surrogate
There is a list of actions that surrogates should abstain from while undergoing embryo transfer. One of them is to abstain from sexual intercourse until after frozen embryo transfer is done and pregnancy is not detected. This is to prevent unwanted pregnancy from happening, which may result in unfortunate circumstances as described at the beginning of this blog. Most surrogates are responsible women who want to help intended parents have a baby. However, a small number of surrogates may not be as responsible and may choose to do activities that are prohibited, such as having an intercourse.
It is important that you thoroughly vet the surrogate, with the help of your agency or clinic, before you sign on with the surrogate. You should make sure that the surrogate is a mature, stable, and responsible woman who will have the best interest of your fetus at heart. This can be done by reading the surrogate’s profile and holding interviews with the surrogate.
In addition, check the surrogacy contract; it should state that the surrogate should not have sexual intercourse during and immediately after embryo transfer.
3) Negotiate your Agency Contract
Some agency contracts may contain clause that protect the agency from the liability arising from the baby not being related to the intended parents. For example, if a program offers live birth guarantee, the contract might say that the agency does not guarantee the baby to be genetically related to the intended parents.
Most agencies are reluctant to put in a remedy clause in case the baby is not genetically related to the intended parent. This is because such a consequence may happen outside of an agency’s control. For example, the clinic that the agency contracts to may use a wrong embryo inadvertently due to human errors. This being said, try to see if you can negotiate a remedy clause for the case where the baby is not genetically related to you. For example, see if you can make the final payment contingent on having a positive DNA test after birth. Or, ask for a certain amount of refund if the baby is not genetically related to you. By having a remedy clause in the contract, you might be able to make the agency pay more attention to your case, reducing the chance of human errors.
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