German guidelines for psychosocial counselling in the area of “cross border reproductive services”
An increasing number of couples and individuals with a desire for a child travel abroad for assisted reproductive technologies that are not available in their home country. This trend has been coined “cross border reproductive services” (CBRS), often comprising third party reproduction. In order to respect the welfare of all parties involved, the German Society for Fertility Counselling has developed guidelines for psychosocial counselling in this area in 2010. The following article raises some of the controversies in CBRS and introduces these guidelines.
KeywordsCross border reproductive services Psychosocial counselling Infertility Third party reproduction Welfare of the child ART
Infertility has always motivated couples to go to great lengths in order to fulfil their wish for a child. They have travelled within their country to places considered to be especially conducive to fertility and they have travelled abroad in order to undergo procedures or treatments not available in their home country. Cross border reproductive services (CBRS)1 is discussed not only in Germany, but is a worldwide phenomenon. It refers to couples and individuals seeking ART treatment outside of their country of residence.
As CBRS is often associated with law evasion and commercialisation, there has been controversy regarding its acceptability. The European Society of Human Reproduction and Embryology (ESHRE) task force argues that there may be acceptable reasons for travelling and thus for law evasion although in principle, national legislation should be respected . The Task Force suggests that the respect for values such as autonomy and self-determination has increased and this justifies travelling for ART in some cases as long as safety, efficiency and the welfare of patients and the future child is taken into account. However, this does not always seem to be the case. In the United Kingdom, for example, there are indications that approx. one quarter of all multiples resulting from ART treatment is conceived abroad . Furthermore, fertility clinics have been said to advertise unrealistically high success rates (for ex. see ) and treatment procedures using oocyte donation have been disapproved of for ethical reasons  as well as for concerns of financial exploitation of vulnerable women [5, 6, 7]. Concerns about the welfare of intended parents, donors, surrogates as well as the children conceived have led to the development of a “Good practice guide for cross border reproductive care for centres and practitioners” by ESHRE  stipulating—from a medical and ethical perspective—that quality, safety and evidence-based care should lead to minimizing risks and maximizing chances of pregnancy. Arguing from a psychosocial and ethical perspective, Thorn and colleagues  made suggestions for minimum standards of care in Europe, including voluntary commitment to altruistic donation and surrogacy, the provision of counselling not only for recipients but also for donors and surrogates, the involvement of multidisciplinary ethics committees for complex cases, identifiability of donors and surrogates for offspring and a strive towards national self-sufficiency in order to decrease the number of patients travelling.
Numbers and data
So far, there are no reliable data regarding the extent of CBRS. In 1999, it was estimated that 30 % of all foreign couples treated with in vitro fertilisation (IVF) in Belgium were foreigners, the percentage of foreign patients undergoing oocyte donation was as high as 60 % . In the same year, approx. half of all couples undergoing pre-implantation genetic diagnosis (PGD) in Belgium were German couples .2 In Spain in 2006, 1,500 oocyte donation cycles were carried out on women from abroad (mainly from Germany, Italy and the United Kingdom); in comparison to the previous year, this represented an increase of 12 % .
From 2008 to 2009, ESHRE conducted the first pilot study collecting data and figures for CBRS within a defined period of time . For this study, during 1 month, 1,230 questionnaires filled in by patients from 46 clinics in six countries (Belgium, the Czech Republic, Denmark, Slovenia, Spain and Switzerland) were evaluated. After patients from Italy, the 177 German patients represented the second highest proportion of couples in this pilot study (14.4 %). They mainly travelled to the Czech Republic (67.2 %) in order to undergo ART using their own or donated gametes. 80.2 % of the German patients indicated legal reasons for seeking treatment abroad. They mainly used the internet for gathering information about treatment abroad but also friends, medical doctors and patient organisations. The authors assume that in Europe—based on an extrapolation of these study results—approx. 24,000–30,000 treatment cycles annually are carried out on patients who have travelled abroad for treatment. As German couples represented 14 % in this study, it can be assumed that a minimum of 3,000 treatment cycles is carried out on German patients annually.
Further primarily qualitative research has been conducted by the working group “Cross Border Reproductive Care—Transnational Reproduction” [13, 14] (also see: www.transrep.co.uk/index.php?p=4) in the United Kingdom as well as by the International Infertility Counselling Organisation (IICO; www.iico-infertilitycounseling.org). Furthermore, in 2011, a special issue of the journal Reproductive Biomedicine online (volume 23, issue 5) was dedicated to CBRS.
The possibility for comprehensive and neutral information,
Understandable and transparent contracts,
Comprehensive information regarding the legal implications,
Psychosocial counselling of all parties involved prior to treatment with third party reproduction, which also explores sharing information with children.
Need for guidance for mental health professionals
This situation is not only challenging for patients and medical professionals. The ESHRE “Good practice guide”  primarily address issues in the medical area. Furthermore, it suggests that counselling and psychological support should be provided for both foreign and national patients, but it does not detail the areas that should receive attention. However, infertility counsellors may also feel overwhelmed by the complexity CBRS raises and by the multitude of legal and cultural differences in the provision of ART in various countries and the difficulty of accessing reliable and up-to-date information.3 Since its inception, the German Society for Fertility Counselling has published several guidelines. The qualification guidelines define minimum professional qualification standards for mental health professionals conducting fertility counselling. The guidelines for psychosocial infertility counselling recommend the inclusion of counselling in medical treatment , the guidelines for psychosocial counselling in the area of third party reproduction explain the counselling tasks relevant in this area . The following describes the counselling tasks relevant for couples considering ART abroad. They are based on the iCSi fact sheet, and an expertise written for the German family counselling institution pro familia .
Guidelines by the German Society for Fertility Counselling “Psychosocial counselling for women and men who intend fertility treatment abroad” (German Guidelines on CBRS)
There is controversy whether travelling abroad for fertility treatment indicates reproductive autonomy, civil disobedience or an illegal action [1, 19]. The German Guidelines “Psychosocial Counselling for women and men who intend fertility treatment abroad” were developed and implemented in order to take into account the specific need for counselling of men and women who intend fertility treatment abroad. These guidelines are a position paper of the German Society for Fertility Counselling on CBRS, based on its psychosocial and counselling expertise. Independent from professional and personal attitudes or an ethical appraisal of CBRS, intended parents who consider CBRS are confronted with a multitude of challenges. Language problems, a flood of information in the internet and advertising strategies that are not always reliable make it difficult to take decisions. Intended parents require comprehensive and neutral information as well as counselling in order to be able to ask critical questions so that they do not only understand medical treatment options and other possibilities to fulfil their wish for a child but also success rates and risks and are able to decline treatment. This is fundamentally necessary for highly complex medical interventions such as infertility treatment; it is even more vital for treatment that takes place in other than their country of residence.
Infertility counselling should respect reproductive autonomy and should result in a well-considered and measured use of ART options. It is therefore vital to provide reliable information and well-founded counselling prior to, during as well post treatment. In order to avoid a conflict of interest, counsellors should provide their service without mandate and free from directives from the medical or administrative infertility team. Exploring the possibilities and risks prior to treatment may mitigate the risk to accept treatments that could entail physical or psychological risks for the intended parents or the child to be conceived on the basis of unrealistic or untenable promises. It is therefore necessary to have access to low-threshold counselling. Counselling is always non-directive and its primary aim is to facilitate well-founded and autonomous decision-making for intended parents, which can result in a decision for or against treatment abroad. Exploring infertility always includes a critical appraisal of limits of and in life, limits of medical treatment and limits of emotional suffering. Infertility counselling includes a conscious reflection of these essential issues.
Although the following guidelines primarily refer to psychosocial issues, they also include legal, medical and financial issues. The first section described general issues, the second and third sections issues relevant in counselling for specific treatment options.
Intended parents must ensure that they fully understand the information regarding the type of treatment planned. It is helpful to have sufficient language skills in order to ask relevant questions. If the information cannot be provided in the language of the patient, sound English language skills can be helpful. If a translation service is required, intended parents must ensure—as well as they can—that the questions are correctly translated and that they fully understand the answers. They should refrain from signing a consent form they do not or only partly understand.
The treatment intended should be medically indicated, the success rate should be adequate and there should not be any contraindications against ART treatment or pregnancy. If there are doubts, medical clarification is required.
In some cases it is advisable to undergo the first treatment steps (e.g. hormonal induction to stimulate oocyte growth) in Germany; fertility clinics in the country of residence of the patients can be asked if they offer this. However, it has to be taken into account that being involved in treatment prohibited in Germany may entail penal sanctions for the medical staff.
All medical documents regarding diagnosis and treatment protocols (including diagnostic procedures and results, results of previous treatments and further documents relevant in individual cases) should be submitted to the clinic abroad. In some countries, there are restrictions, e.g. oocyte donation can only be carried out if there is a relevant medical diagnosis. Medical documents may be important in case of complications. Intended parents should also ensure that they receive all medical documents of the treatment abroad as this may be necessary for treatment in their home country in case of complications. They should be aware that it may be difficult to take legal steps in case of medical malpractice if treatment was carried out abroad.
Reimbursement of treatment costs
The German health insurance system does not reimburse costs for treatment abroad unless the treatment is legal in Germany (e.g. no reimbursement for oocyte donation) and unless the conditions for reimbursement according to § 27a of Social Code, Section V4 are adhered to. In countries belonging to the European Union, ART treatment can be reimbursed as long as the conditions of § 27a SGB V are adhered to. In the case of private health insurances, the individual contracts are relevant. Clinical experience indicates that some health insurances inform their members about ART abroad in the hope that it is less expensive than treatment in Germany.
Prior to deciding for treatment, the clinic abroad should provide a transparent and legally binding treatment plan which also details the costs (including the compensation for donors and surrogates). Intended parents should be aware that several treatment cycles may be necessary and that travelling abroad also entails travelling and accommodation costs as well as meals in restaurants and typical small costs. If treatment results in a pregnancy, the German health system bears all subsequent costs during pregnancy and for the birth of the child.
Counselling should explore whether intended parents have sufficient psychological and financial resources to carry out treatment abroad and whether this is feasible given their physical, psychological and emotional health. If intended parents keep treatment abroad a secret from family members and friends, they may lack emotional support. If several treatment cycles in their home country were unsuccessful, intended parents need to explore if they have sufficient emotional energy to undertake complex procedures such as treatment abroad, independent from its chance of success. In some cases, time off treatment may be indicated, in others, reflecting the emotional state may result in the decision to stop treatment altogether. If intended parents decide for treatment abroad, they should be able to access counselling during as well as after treatment, independent from the outcome of treatment.
The risk of multiples
In order to reduce the risk of multiples, intended parents should be aware that whenever more than one embryo is transferred (e.g. IVF or oocyte donation) or hormonal induction is used to stimulate the growth of oocytes (e.g. donor insemination with drug induction), this can result in multiples. They should be given the following information: In line with recommendations in Germany and other countries, women under the age of 38 should only be transferred one or two embryos. Only women older than 38 years should be transferred two or a maximum of three embryos. As soon as more than one embryo is transferred (during IVF and ICSI) or more than one oocyte has developed (after hormonal induction), there is an increased risk for multiples. Therefore, hormonal induction always requires cycle monitoring. If blastocysts are transferred, according to current recommendation, a maximum of one or two embryos should be transferred . Three blastocysts should only be transferred in exceptional cases after having carefully considered the risk of multiples.
Current overview of ART practice abroad
As a result of the dynamic situation in many countries regarding legislation and policies in the area of ART, it will be a challenge for counsellors to stay abreast of these developments. An overview has been put together by ESHRE (http://www.eshre.com/page.aspx/16), by “Biopolicywiki” (www.biopolicywiki.org) and the German Max-Planck Institute for International Penal Law (www.cueno.de/medr/show_all.asp). It is also helpful to refer to patient and self-help organisations, which are active in many countries. These organisations are knowledgeable not only in the legal area but can also provide detailed information regarding the medical practice in their country. Furthermore, they can help to establish contact to patients in their country. iCSi (www.icsicommunity.org) and Fertility Europe (www.fertilityeurope.eu) have compiled a list of national patient organisations.
Reflecting the counsellor’s attitude
Mental health professionals involved in infertility counselling are required to explore their personal and professional attitude regarding CBRS. It is vital for them to clarify their attitudes towards e.g. oocyte donation, embryo selection or lesbians seeking DI. Intended parents deserve understanding and respect for the paths they plan in order to fulfil their wish for a child. This does not imply that counsellors may not raise controversial issues. However, the counselling process should be non-directive and not influenced by the personal attitude of the counsellor. If intended parents plan treatments that are prohibited in their home country, counsellors should be knowledgeable where their professional activity may reach the boundary of relevant legislation and should realize that under certain conditions, their professional involvement may have penal consequences even though the activities of indented parents themselves are exempt from punishment. The description of counselling options in these guidelines does not imply that carrying out these treatment options during counselling may remain without penal consequences.
Counselling prior to treatment with the gametes of the intended parents
The following section describes issues relevant for counselling according to the type of treatment. It starts with issues relevant for counselling intended parents who plan to undergo treatment with their own gametes (excluding surrogacy) and continues with issues relevant for third party reproduction.
Many intended parents travel in the hope that treatment abroad has higher success rates. PGD is used by couples whose offspring have a high risk for genetic diseases. For couples living in eastern Germany, treatment in eastern Europe may seem to be less costly.
Adherence to international standards
It is important to ensure that the intended treatment adheres to international standards. This is vital regarding the number of embryos/blastocysts transferred. The risk of multiples is also dependent on the age of the female patient. In order to minimize the risk, women under 38 years are only transferred a maximum of two embryos in Germany. For a number of years, in several countries (e.g. Sweden, Belgium) young women (under the age of 38) have only been transferred one embryo in the first treatment cycle [20, 21].
If blastocyst transfer is planned, intended parents should be informed that there is contradictory information whether this results in higher pregnancy rates in all cases .
Prior to treatment with blastocyst transfer, the female partner’s ovarian reserve should be ascertained. Hormonal stimulation should result in a minimum of six to eight oocytes. This may not be the case in older women. If younger women have undergone treatment and only few oocytes developed, there should be careful evaluation if a blastocyst transfer requiring many oocytes is feasible.
Gain in knowledge
Prior to PGD, intended parents should be informed if this diagnosis is relevant and reveals sufficient information for the intended parents so that they can use this as the basis for their decision regarding treatment.
Counselling prior to third party reproduction (oocyte donation, donor insemination, embryo donation) and surrogacy
As oocyte donation and surrogacy are prohibited in Germany, embryo donation can only be carried out in exceptional cases  and lesbian as well as single women are not always treated, these are typical reasons for CBRS. The following will outline psychosocial issues to be covered in counselling and conclude with medical and legal issues to be taken into account.
Right of the child to access information about their biological origin
Intended parents should be aware if the child has the right or the possibility to access the identity of the donor or the surrogate (or has at least access to non-identifiable information such as age, professional background, hobbies, phenotypological information) as of a certain age (in line with adoption, in general as of the age of 16 or 18). In many countries, this is not enacted in legislation and thus dependent upon medical practice of the fertility clinics. The German Society for Fertility Counselling recommends against treatment in those countries that do not grant offspring access to such information.
Attitudes and values of the intended parents
The conditions of third party reproduction can be of utmost importance for the intended parents as well as for the offspring. Whether the donation of gametes was an altruistic and autonomous act or the result of a financial need (“exploitation of donors”) is a vital issue. During infertility counselling, there should be sufficient time to explore the ethical aspects of commercialisation in the area of third party reproduction prior to the intended parents taking a decision. The medical risks for oocyte and embryo donors and especially surrogates, typically young and healthy women, must be considered. In addition, the medical care of donors and surrogates before, during and after treatment should be part of the ethical decision and considered when selecting a country and a fertility clinic.
Undergoing treatment that is prohibited in the home country of the intended parents can result in feelings of shame and trigger pangs of conscience. If the personal moral conflict cannot be resolved and the intended parents perceive CBRS not as civil disobedience but as an illegal action, counselling should explore whether CBRS is an acceptable way forward and whether this way of building a family can be integrated positively into the couple’s identity in the long-term.
Reflection of biological and social parenthood
Intended parents who plan to build a family including both biological and social parenthood (e.g. oocyte donation) or only social parenthood (e.g. embryo donation) must explore the meanings of these types of family compositions and their management. One important issue is information sharing with the children: Will the children be informed about their conception and the use of a donor and/or surrogate or will this remain a family secret? Mental health professionals recommend early disclosure as it is easiest for young children to integrate this information into their identity and as it avoids the burden of a family secret . The German Society for Fertility Counselling recommends comprehensive counselling so that intended parents have sufficient information and can explore all relevant aspects, including disclosure. These areas for counselling will not be detailed here; they are described in the relevant guidelines .
If intended parents are confronted with such complex issues, counselling should not only be offered prior to treatment in order to clarify issues, but should be offered during treatment and once the child is born. It is helpful to consider many issues as early as possible, but some only will only arise and become acute after the birth of the child. This includes support once the child has reached the age for disclosure. Therefore, counselling should be easily accessible a long time after medical treatment. Such counselling can be especially helpful for parents who initially decided against disclosure. Counselling should respect parental autonomy and indicate that counselling will be available at any time should they change their decision. Offspring conceived with the help of third party reproduction should also be able to access counselling (by themselves as well as with their parents).
Transparent medical treatment costs, compensation of donors and surrogates
Prior to medical treatment, patients should be informed about all costs, this includes the compensation or payment for the donor and/or the surrogate.
In Germany, the Civil Code (Bürgerliches Gesetzbuch—BGB) defines legal parenthood. According to § 1591 BGB, the woman giving birth to a child is the legal mother.5 This is also the case after oocyte donation. However, it is important for intended parents to be informed if this is the case in the country of treatment in order to avoid legal complications. In specific cases, it may be important to draw up a contract clarifying this. According to § 1592 BGB, the man married to the woman at the time of birth, the man who has accepted paternity or whose paternity has been legally determined according to § 1600d BGB or § 640 h para. two of the German Code of Civil Procedure (Zivilprozessordnung) is accorded legal paternity. As there is no man accepting paternity in the case of lesbian or single women conceiving a child with the assistance of DI, it is important to be aware of the legal regulation in the country of treatment. Intended parents should be informed if the donor is exempted from legal paternity, if this is not the case or if a contract is required. After embryo donation, in Germany, legal motherhood is accorded to the woman giving birth. If she is not married to the intended father, the semen donor may risk being accorded legal paternity until the intended father has accepted paternity. In these cases, it is also important for intended parents to know about legal regulations in the country of treatment.
The legal implications after surrogacy may be very complex. According to German legislation, the intended mother is not the legal mother, as she did not give birth to the child. This is even the case if her oocyte were used to impregnate the surrogate, if she is thus the biological mother. Paternity therefore is also unregulated. In many countries it is necessary for the child to be relinquished for adoption by the surrogate and her partner and for the intended parents to adopt the child in the country of the surrogate and in their home country. This can be stipulated in contracts prior to treatment. However, such contracts are not legally enforceable and this may lead to legal disputes regarding the adoption process and legal parenthood or the reclaim of payments. Furthermore, there have been disputes regarding the nationality of the child .
The intended parents should ensure that they are in possession of all legal documents required for travelling home with their child and the subsequent adoption. It is advisable not only to rely on the legal information provided by the fertility clinic but also to seek independent legal advice from a legal expert experienced in this area.
Intended parents should be aware of the type and length of documentation regarding the medical document, especially the documents regarding donors and surrogates. In all countries of the European Union, according to the EU Tissue Directive , documents must be kept for a minimum of 30 years. It is not certain if this documentation period is adhered to in all countries. The right of offspring to access these documents is subject to national legislation. Documentation may be relevant beyond the 30-year period for offspring, it may also be necessary in the case of medical complications to have access to the identity of the donor or surrogate.
These guidelines do not intend to question the Germany Embryo Protection Act. They were developed for mental health professionals so that they can provide a sound possibility to explore the opportunities and risks with men and women considering ART abroad. In the three decades during which infertility counselling has been evolving, several national organisations have established counselling guidelines. However, this development can only be considered work in progress as there are considerable variations regarding the legal or professional mandate for counselling, little agreement regarding definition of the counsellors’ roles and large parts of the world where infertility counselling is not practiced . The above guidelines are—to our knowledge—the only guidelines pertaining to CBRS and a contribution towards the professionalization of infertility counselling.
There should be legally binding documentation of all records regarding donors, surrogates and recipients. This documentation should be accessible for a minimum of 80 years.
Offspring should be granted the legal right to access these records and thus have information about their biological origin, independent from where conception took place, independent from the country of origin of donors and surrogates and independent from the country of treatment.
Donors and surrogates should not only be assessed for psychological stability, they should also have access to low-threshold psychosocial counselling prior to, during and post treatment.
The psychosocial and medical implications of third party reproduction for the resulting families as well as for the donors and surrogates should receive more attention. This requires long-term and follow-up studies of all parties (donors, surrogates, parents, and offspring).
A public debate regarding the compensation of donors and surrogates is necessary as well as a debate concerning the potential exploitation of these parties.
It is necessary to make efforts to provide solid and reliable information regarding CBRS, including opportunities and risks as well as criteria to help assess the reliability of information (e.g. internet information).
According to a proposal by Blyth, Thorn and Wischmann (2011), [see references 2, 5, 6, 7] the more neutral term “cross border reproductive services” is used in this paper instead of the potentially inappropriate term “cross border reproductive care” as “care” implies a benevolent notion that may not always be present.
In Germany, according to changes in the Embryo Protection Act in June 2011, PGD has become possible if the pregnancy results in a stillbirth or the child to be conceived suffers from a severe genetic disease.
Although there are several websites providing information of legislations in various countries (see 1.8 below), information such as the right of offspring to access donor information or the legal status of a surrogate are not always available nor is the information online always up-to-date or include typical clinical practice for those areas where there is no legislation (yet).
The Social Code, Section V determines which cases are excluded from reimbursement.
In many jurisdictions, the woman giving birth is the legal mother, her husband the legal father.
Conflict of interest
- 3.Kraske M, Ludwig U (2005) Die Babygrenze. Der Spiegel 46:108–118Google Scholar
- 4.Schindele E (2006) Der Eierdeal—das globale Geschäft mit menschlichen Eizellen. Deutschlandfunk. http://www.dradio.de/dlf/sendungen/wib/545060/. Accessed 12 Feb 2009
- 9.College of Physicians (2001) Reproductive medicine and Belgian register for assisted procreation. Verslag 1998–1999Google Scholar
- 11.Velasco JG (2007) Egg donation in Spain. The Spanish point of view. Focus on Reproduction 26–30Google Scholar
- 13.Culley L, Hudson N, Blyth E, Norton W, Pacey A, Rapport F (2011) Transnational reproduction: an exploratory study of UK residents who travel abroad for fertility treatment. Summary Report. http://www.transrep.co.uk/index.php?p=4. Accessed 09 Jan 2012
- 15.International Consumer Support for Infertility (iCSi) (2008) Travelling abroad for assisted reproductive (ART) treatment. International consumer support for infertility. http://www.icsicommunity.org/information/fact-sheets/travelling-abroad-for-art. Accessed 21 July 2010
- 16.Kleinschmidt D, Thorn P, Wischmann T (2008) Kinderwunsch und professionelle Beratung. Das Handbuch des Beratungsnetzwerkes Kinderwunsch Deutschland (BKiD). Kohlhammer, StuttgartGoogle Scholar
- 18.Thorn P (2008) Reproduktives Reisen—eine Expertise für den Pro Familia Bundesverband. Pro Familia Bundesverband. http://www.profamilia.de/shop/download/285.pdf. Accessed 24 Sep 2009
- 22.Blake D, Proctor M, Johnson N, Olive D (2005) Cleavage stage versus blastocyst stage embryo transfer in assisted conception. Cochrane Database Syst Rev (4):CD002118. doi:10.1002/14651858.CD002118.pub2
- 23.Günther H-L, Taupitz J, Kaiser P (2008) Embryonenschutzgesetz: Juristischer Kommentar mit medizinisch-naturwissenschaftlichen Einführungen. Kohlhammer, StuttgartGoogle Scholar
- 25.European Parliament and the Council of the European Union (2004) Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004. http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=de&type_doc=Directive&an_doc=2004&nu_doc=23. Accessed 25 March 2011