Ask the Surrogacy Experts

“Good morning Bill. I did my IVF cycle in Europe, but surrogacy is not possible here. Can I send the embryos to the United States for surrogacy? Is it legal?” — Laura

 

Good morning Lucy.

I get this question a lot — and it’s been even more common during the recent travel restrictions and border closures. Many Intended Fathers have asked about sending sperm samples overseas because they were not able to donate in person. The answer is… bringing oocytes or embryos into the U.S. is possible in some cases, but it’s very complicated.

If you have oocytes or embryos overseas, the better option is to send them to a country that supports surrogacy — but NOT to the US. If you’re thinking about an IVF cycle, just do the cycle in the US and bypass the entire shipping issue.

But if you have no choice, and you want to bring your embryos or eggs into the US for a surrogacy procedure, here’s the full scoop…
 

Why You Can’t Bring Embryos Into the US?

surrogacy in the USAIt’s not possible to bring embryos or eggs into the United States unless both the egg donor and sperm donor completed a full FDA Donor Assay at the time they donated. The list of all tests can be found on the FDA website.

These FDA exams must be done by an FDA Certified Tissue Facility. They can’t be done by your local IVF clinic. There are very few of these outside the United States — so you should assume these tests were not done, and the oocytes/embryos do not qualify to enter the US. (If you have a question, you can check for an FDA Tissue Facility near you on their website.)
 

How to Bypass the FDA Restriction

In some cases, the FDA may allow Donor Assay to be done later (even years later). This is possible in rare situations where a married couple intended to carry the pregnancy themselves, but learned too late that they were incapable. This is called a “Best Effort” waiver, and the couple must be able to show that they intended to use the embryos themselves, but they found out afterward that was impossible and now they must bring the embryos to the US for a surrogacy procedure.

For the Best Effort waiver, the couple still must complete the entire FDA testing assay, and it still must be performed at an FDA lab (likely within the United States). Without the screening from a US lab, the eggs/embryos cannot enter the US.

But in some cases, an overseas clinic can assist you with the FDA Donor Assay. The overseas clinic cannot perform the tests themselves, but they can collect the blood and plasma samples and send them to the US lab for analysis. For this, the clinic must use an FDA Donor Testing Kit, which can be ordered from the US clinic that will eventually accept the eggs/embryos. The cost of the kit is about $750 USD, and one kit is needed for each donor.

The overseas clinic will collect the blood and plasma samples, package and label them according to strict instructions supplied in the Kit, and send the kit by immediate delivery to the US lab. The lab will analyze the samples and issue the report needed to bring the embryos into the US.
 

Best Effort waivers do NOT support LGBT families!

Central to the requirement for the Best Effort waiver is that the intended parents originally planned to carry the pregnancy themselves. Obviously, same-sex male couples can’t make this claim. So it’s basically impossible for male couples to bring embryos into the United States.

For my gay intended parents, I usually advise them to send embryos to Colombia or some other friendly surrogacy destination. In some cases, embryo can be sent to Canada, and a US surrogate can travel across the border for an embryo transfers 9and then return home for the pregnancy and delivery). In this way gay couples can use their overseas embryos without needing to bring them into the US, while still hiring a US surrogate and benefiting from the supportive legal framework in the US.
 

Shipping Embryos and Oocytes Internationally

Once the blood and plasma samples are analyzed and the results of the FDA Assay are returned to the US clinic, the eggs/embryos can enter the US. But it’s not quite so simple… There are often a wide variety of permits and customs procedures needed to move the medical tissues internationally. This will be different in every country.

Some countries (like the UK) need documentation of the credentials and procedures in place at the receiving clinic. Other counties (like Mexico) need special health permits that require months to collect. Other countries (like Spain) completely forbid the export of human tissues altogether.

The best way to understand the exact requirements is to contact the overseas clinic and request their full set of requirements.

Once the permits and medical checks are complete, the shipment can be made by a licensed international courier or shipping agent. It’s important to find a courier who is familiar with the local customs procedures and has experience in bringing samples into that country. If the customs forms are not correctly completed, the eggs/embryos may be delayed by the customs office — sometimes for weeks — until the shipment can be cleared. If dealyed at the customs office, the contents may thaw and the samples left useless.

This entire process will certainly take months to complete, and the cost is likely to range from $5,000 to $8,000 USD, not including the cost of the donations or IVF cycles. So it’s easy to see why this solution is not very popular. We have done this at times under unusual circumstances. But the best solution is still to perform the IVF cycle within the United States, and sidestep the entire challenge of importing the embryos.

I hope this is useful,
— Bill

 
 

About the authors

  • Author: William Houghton

    Bill Houghton is the founder of Sensible Surrogacy, author of the Sensible Surrogacy Guide, 2x surrogacy dad, and a dedicated advocate for secure, legal and ethical Gestational Surrogacy. Read Bill's Biography
 

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