The importance of Psychological Screening

Couples or individuals entering into gestational surrogacy arrangements often focus on the medical aspects of a surrogacy pregnancy.  Foremost in their minds is - can she have a healthy pregnancy? 

However, surrogacy is both emotionally and physically demanding making the psychological screening just as critical as the medical evaluation.  Delving into the emotional and often, less tangible aspects of the journey with a skilled mental health professional is critical to ensure that both the parents and carrier are emotionally prepared for what might lie ahead.  

To discuss this important facet of the surrogacy process and how it helps to protect the interests of both parties, Chelsea Surrogacy Advisors (CSA) was fortunate enough to speak with Dr. Andrea Braverman. Dr. Braverman is Clinical Professor of Psychiatry at Thomas Jefferson University and has been working in the field of infertility counseling for over 20 years.  Dr. Braverman has extensive experience supporting individuals and couples facing infertility, as well as egg and sperm donation and gestational surrogacy.

CSA: What is at the core of the psychological screening of a gestational surrogate?  Why is the screening necessary?

Dr. Braverman: We do psychological evaluations because a carrier is more than a uterus for hire.  The psychological evaluation gives us an opportunity to explore whether there are any psychological issues or psychopathology that would interfere with her ability to carry a pregnancy.  The example I have is if someone is so clinically depressed that they have a hard time getting out of bed.  From a practical sense of following directions and going for monitoring appointments and doing all the things necessary for the pregnancy, this is not a good idea.  From her perspective, we are putting an enormous amount of responsibility on a person that is not coping well with the stressors in her life.  For her best interest and that of the intended parents, we want to know if she is depressed and anxious.  

CSA: In addition to determining that the carrier is mentally healthy, what are the other issues or concerns addressed in the evaluation?

Dr. Braverman: A skilled mental health professional will help walk them through all of the demands and the issues that may come up for them or their children in the future.  For the carrier to be able to give informed consent she needs to know what the issues are. 

We talk about the pregnancy and all the good stuff but also what happens when someone asks the carrier if she is having another baby?  How does she respond?  What if there is a miscarriage?  What if there isn’t a pregnancy?  What if there is a problem at birth or a tragedy and the journey does not have a Hollywood ending?

We also look at the impact on the carrier’s family.  For example, if her children are in Catholic school what kind of impact could that have?  Does she live in a community where she will have the same level of support if she is carrying for Fred and John and not John and Nancy?

CSA: What should the carrier and the intended parents consider when matching?  How do they know if they have found a compatible match?

Dr. Braverman: Before COVID, people would think, what could go wrong?  Why are we spending all of this time talking?  Now we can say well, a pandemic can happen, riots can happen.  Because of these events, people are willing to consider the what-ifs.  We talk to each party to get them to talk about the different scenarios.  We want to help them figure out if they can, then talk to one another, to understand one another’s expectations and how they will address issues when they arise.

CSA:  As you know one of the most critical decisions a carrier and the intended parent must make is agreement on termination.  Can you elaborate on how this is addressed?

Dr. Braverman: We used to spend a lot of time on selective reduction, but Single Embryo Transfers (SET) have thankfully become the norm.  Still, we must help the carrier think through a reduction or termination.  Do they know what it means?  When will it happen?  How does it happen?  What happens if they don’t agree with the IPs?  Who decides such issues as quality of life?  Our job is to take the situation from a concept to making it real to them.

CSA: Part of the screening is the administration of either the MMPI or PAI personality tests.  Do you have a preference for either test?

Dr. Braverman:  I use the PAI but it is not about the test but the skill of the administrator.  You have to be trained to use it.  People think because they can read English, they can read a psych report.  It’s much more nuanced than that.

CSA: It sounds as though the experience of the mental health professional is critical.  What do you view as the minimum requirements?

Dr. Braverman: First, the psychologist should be licensed in the state where your carrier lives.  Second, they should be experienced in third party evaluations and have had formal training in it.  Just because someone can do an evaluation does not mean they are familiar with the dynamics of surrogacy.  The person should also have had one-year supervised experience and of course the more experienced the better.  Preferably they are a member of the American Society of Reproductive Medicine.  That indicates they are staying current on updates and shows a level of commitment to doing this for a living.

CSA: How might red flags be missed?

Dr. Braverman: When the process is rushed and people don’t see the point of the screening.  People focus on the medical and think, I am a good judge of character, I’ve met her, she is lovely, why are we doing this?  Maybe the odds are low that she isn’t a good candidate, but if you are wrong you are playing with big guns.  I am a good judge of character but I am not always 100% right and I am going to do everything I can to minimize the risk.

Finally! Surrogacy becomes legal in NY State!

“ You can’t do it here,” was the repeated refrain heard by surprised New Yorkers when the subject of using a gestational carrier arose. That outdated position has been reversed with the April 2020 passage of the Child-Parent Security Act, CPSA. The bill reverses the decades-old ban on commercial surrogacy, which stems from the 1985 Baby M Case.

By decriminalizing compensated surrogacy, the bill allows New Yorkers to enter into a contract with a NY State surrogate, thereby removing the burden of excessive and out of state travel. New Yorkers will no longer have to travel great distances to attend prenatal appointments with their carrier or even have to fly home with a newborn. Additionally, the measure allows these intended parents the comfort of being able to continue to utilize their current doctors many of whom work at some of the world’s top infertility clinics.

The bill goes beyond surrogacy measures and is an enormous win for all New Yorkers facing infertility. It also clarifies and simplifies, parental rights for those using donor egg, donor sperm, and donated embryos regardless of marital status and applies to both same-sex and opposite-sex couples.

Chelsea Surrogacy Advisors spoke with Kathleen “Casey” Copps DiPaola to provide additional information on the bill. Casey is a partner at Copps DiPaola Silverman, PLLC, and a proponent of the legislation.

Chelsea Surrogacy: What is the overarching purpose of the Child-Parent Security Act (CPSA)? How does it benefit New Yorkers dealing with Infertility?

Casey: “The CPSA provides a legal framework for parentage, regardless of which type of third-party reproduction technology is used, including surrogacy. Regardless of a genetic connection, there is a clear path to legal parenthood.

Chelsea Surrogacy: So, regardless of marital status, or method of reproductive science: egg/sperm donation, donated embryo, or any combination thereof….those struggling with infertility, and seeking to utilize a gestational carrier, can be afforded a clear path to legal parenthood in NY State?

Casey: “Correct. An individual or couple ( married or unmarried and same and opposite-sex) using a surrogate and/or donated egg/sperm/embryos can now obtain a pre-birth order of parentage in New York. That order will also state that the surrogate and donors if any are not parents of the child. This process is much more streamlined than the current adoption process, which involved a home study, medical evaluations, and criminal and child abuse clearances. The parentage proceedings will not have these steps and we anticipate the vast majority of these proceedings will not even require a court appearance. As a result, these parentage proceedings will also be less expensive than adoptions.

Chelsea Surrogacy: Going back to the surrogacy piece of the bill: the potential to match with a carrier in one’s home state is very attractive for the reasons stated earlier. However, surrogacy remains a complicated path to parenthood. What protections does the legislation afford intended parents and surrogates?

Casey: New York is going to be the leader in this area. There is an entire section of the bill titled “The Surrogate Bill of Rights.” It is a form that will need to be given to the carrier at the very beginning of their journey so that they are fully aware of what their rights are under New York law. The Bill of Rights applies to the surrogate as long as she is a NY resident, even if her surrogacy contract is following another state’s laws.

Elements of the Surrogate Bill of Rights include:

Right to independent legal counsel by a licensed New York state attorney paid for by the intended parents.

Medical Insurance: The NY bill is different from other states in that intended parents must continue to pay for health insurance for 12 months post-birth. Most other states have shorter post-birth requirements.

The surrogate will be able to make all health and welfare decisions regarding herself and her pregnancy. This includes picking her doctor and deciding whether to consent to a double embryo transfer to consent to a -c-section and whether to abort or to continue a pregnancy. Any provisions of a contract to the contrary will be unenforceable. There is no specific performance remedy allowed for surrogacy agreements but intended parents may be able to seek monetary damages in certain circumstances if a surrogate breaches the terms of the agreement.

Parents also provide mandatory mental health counseling throughout the pregnancy as well as 12 months postpartum.

NY carriers are entitled to life insurance policies above industry standards.

Chelsea Surrogacy: What other measures does the bill enact that protects both parents and surrogates alike?

Casey: Matching programs will need to be licensed by the Department of Health. This is to weed out those who do not have the qualifications or financial stability to do this and hopefully prevent some of the disasters that we have seen across the country over the last decade.

Also, if an agency is not owned or managed by an attorney licensed in NY State, then a separate licensed and insured escrow company must be used.

In addition, if the attorney owns a matching program, she or he cannot represent either the parents or surrogate if the Surrogacy Agreement will be entered into NY Law.

Chelsea Surrogacy: We’ve focused largely on gestational surrogacy. What is the bill’s stance on traditional surrogacy?

Casey: Compensated traditional surrogacy remains illegal, while uncompensated traditional surrogacy remains legal but enforceable.

Chelsea Surrogacy: I know many New Yorkers are thrilled about the bill’s passage and are ready to get started. When can they begin their NY surrogacy journey and other paths to parenthood?

Casey: The bill takes effect, February 15, 2021, which means that people can enter into contracts from that day forward.

Chelsea Surrogacy: Thank you, Casey. We look forward to hearing from you again on this subject.