Surrogacy Laws & “Medical Necessity”: What Does It All Mean?

Surrogacy provides a great way for hopeful intended parents to add to their family. Usually, the process is not restricted for intended parents; as long as they meet the basic requirements set by state laws and their surrogacy professionals, they can choose surrogacy to bring a genetically related child into their home.

However, in addition to the medical and psychological screening all intended parents must undergo, some intended parents may be subject to one more requirement: “medical necessity.” Whether it’s because of a requirement set by their surrogacy professional or their state laws, proving medical necessity can be just one more hurdle to hopeful parents achieving their family-building dreams.

If you’ve heard the term “medical necessity” in your surrogacy research, you may have a few questions. What does it mean to “medically need” surrogacy, and how do you know if you are subject to this requirement?

You can always contact a surrogacy specialist at American Surrogacy for more information, but we’ve also provided some of the basic things you need to know about this topic below.

What Does “Medical Necessity” Mean?

Today, there are two states that require “medical necessity” in order for a surrogacy contract to be enforced: Louisiana and Utah. In both cases, these states’ surrogacy laws mandate that an intended mother must be medically proven to be unable to bear a child and cannot use another reproductive method to add a child to her family. However, these states do not go into more detail about exactly what this “medical necessity” might entail.

In Louisiana, a physician in obstetrics and gynecology and/or reproductive endocrinology must provide an affidavit that an intended mother’s medical condition requires a gestational surrogate. Utah requires the same kind of “medical evidence” in order to validate a gestational surrogacy agreement.

Fortunately, because there are no state regulations on exactly what this term means, all intended parents need in these states is to receive documentation from their doctor affirming their inability to safely and successfully have a child in any other way than gestational surrogacy. If you have further questions about obtaining this affidavit, speak to your fertility specialist and your local surrogacy attorney. They will help you meet this requirement before moving forward with your surrogacy journey.

5 Conditions that May Lead to Medical Necessity for Surrogacy

There are many reasons why an intended mother may be medically unable to carry a child to term. Infertility is a complicated thing, and every intended parent’s path with this challenge will be unique. However, there are a few common reasons why gestational surrogacy may be deemed “medically necessary” for an intended mother.

  1. Unexplained Infertility

In some ways, this can be the hardest path for intended parents. About 1 in 8 American couples struggle with infertility at some point and, for some intended parents, their infertility issues go unexplained. Infertility is usually described as failure to conceive after having unprotected sex for 12 months. Intended parents in this situation are encouraged to see a medical professional, who may suggest fertility treatments. If those treatments fail, gestational surrogacy may be that couple’s only option.

  1. Lack of a Uterus or Vagina

Some women are born without a uterus, while other women undergo hysterectomies early in life to treat conditions like endometriosis. Other times, women have congenital malformations, which can include the absence of a vagina — making traditional conception and delivery impossible. For these women, gestational surrogacy is the only way they can have a genetically related child carried to term.

  1. Scarring on the Uterus

In other cases, women with otherwise healthy uteruses find they cannot conceive or carry a child to term because of extensive uterine scarring. This scarring can be caused by fibroids, a past surgery and scar tissue. Uterine scarring makes it difficult for an embryo to implant and receive the nutrients it needs while it grows. A gestational surrogate’s healthy uterus can often provide a more welcoming environment during this crucial stage.

  1. Complicated Previous Pregnancies and/or Miscarriages

Some intended parents have been able to conceive and carry previous pregnancies — but many of them have either experienced miscarriages or other complications along the way. For intended mothers who already have one child, secondary infertility may be the reasoning behind choosing gestational surrogacy. Usually, a woman’s obstetrician will inform her of the dangers of another pregnancy and may suggest surrogacy instead.

  1. Existing Medical Conditions

Finally, some intended mothers must use gestational surrogates because of existing medical conditions that make pregnancy exceedingly dangerous for them. These conditions often include heart disease, kidney disease, or severe diabetes. Any previous pregnancy conditions (like preeclampsia and gestational diabetes) can also impact a woman’s ability to safely carry a child to term without putting her own life at risk. Usually, conditions like these are noted before pregnancy by a woman’s personal physician, although some may not appear until a woman has already become pregnant. This is why close care from an experienced obstetrician is so important for all women, including intended mothers and gestational surrogates.

What If You’re Experiencing Social Infertility?

Not all intended mothers and fathers have a “medically necessary” reason for choosing gestational surrogacy. For example, single gay and straight fathers may wish to have a child on their own, while gay male couples will need a surrogate to carry a child for them.

If you live in a state that requires “medical necessity” to pursue surrogacy, and you’re in one of these situations, know that you do have options. You can always match with a surrogate in another state where medical necessity is not required. You can also speak with a local surrogacy attorney and surrogacy professional to determine what paths are available for you in your home state if you wish to pursue gestational surrogacy.

Medical necessity doesn’t have to be a deal-breaker for intended parents considering surrogacy. If you wish to have a child through this family-building method, there are options. To learn more about them, please call our agency at 1-800-875-BABY(2229).

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