From the Lawyer's Desk: When Traditional IVF Isn’t Working - Surrogacy and Egg Donation in Missouri

By Tim Schlesinger of Paule, Camazine and Blumenthal, P.C.

You’ve been going to your fertility doctor for a year, trying IVF, and it isn’t working.  Now you are told you can’t produce viable eggs.  Or, perhaps, you are told you can produce eggs, but you can’t carry a child.  You still want to have a baby.  What are your options? 

Two of your options still involve IVF, but with a third person involved.  1) A surrogate, also called “gestational carrier”, is a woman who becomes pregnant for the specific purpose of having a child to be raised by someone else (Intended Parents).  The gestational carrier has no genetic relationship to the child.  The purpose of this arrangement is to allow the Intended Parents to have and raise the child, and be that child’s parents for all purposes.  2) An egg donor donates eggs to be fertilized in the lab and implanted in the Intended Mother’s uterus.  The donor gives up any connection to those eggs, so that the Intended Mother is the mother of the child born.

1. Surrogacy Arrangements:  In Missouri, there are no specific laws approving or disapproving of surrogacy arrangements.  However, these arrangements are happening.   Babies are being born, in Missouri, with surrogates.  If your fertility doctor says that you are a candidate to have a surrogate carry your child, there are agencies and on-line communities which can help you (and your spouse or partner) find a gestational carrier.  Although there is no law in Missouri specifically requiring a written agreement, any reputable fertility clinic will require: a) that you have a written agreement setting forth all of the details of the surrogacy arrangement; and b) that you and the surrogate are each separately represented by independent attorneys.  The most important thing the surrogacy agreement must spell out is that you are the parent of the child, for all purposes.  When the child is born, in Missouri, in order for you to be declared the legal parents, you must file an action with the court.  The type of legal action which must be filed depends on your genetic relationship to the child being born.      
2. Egg Donation Agreements:  It is far more common, medically, for a woman not to be able to produce viable eggs than it is for a woman not to be able to carry a child.  As a result, many couples seek egg donors so that they can have the same pregnancy experience they would have if they weren’t having fertility problems.  There are several agencies in the Midwest which specialize in connecting “Intended Parents” with egg donors.  Once again, reputable fertility clinics require a written egg donation agreement and require the egg donor and the recipients to have independent legal representation.  You will give birth to the child and you will not have to file any legal action.  You (and your spouse or partner) will be the parents on the birth certificate. 

These options cost money, but the result is building a family.  IVF is expensive, and fertility agencies are expensive.  The lawyers are actually the least expensive part of the process.  It is critical to have an attorney experienced in these types of cases (lawyers call these cases “third-party assisted reproduction” or “ARTs”) to guide you through the process.  Think about what is at stake - building your family -  and don’t take shortcuts.  

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