Legal Implications: Surrogacy
Surrogacy can be a wonderful experience for both the intended parents and surrogate involved. Artparenting.com shares the remarkable experiences from families and perspectives of the surrogates involved.
Surrogates can be found through agencies or can be friends or family members. The motivation in being a surrogate is unique to each person as is the reason intended parents look to surrogacy. Surrogates can be gestational carriers, only, which means the baby’s genetics are from donors or the intended parents. Or they can be traditional surrogates which involves the surrogate donating her egg cells to be fertilized with the desired sperm and carry the resulting pregnancy.
While the process can end successfully, there have been numerous court cases regarding surrogacy, most famously cited is the Baby M case. A couple, Mr. and Mrs. Stern, desired a baby and asked Mrs. Whitehead to be the traditional surrogate (meaning her egg cells would be fertilized with Mr. Stern’s sperm and she would carry the pregnancy to term). The couple and Mrs. Whitehead signed a contract stating the Sterns were the intended parents of the baby. Mrs. Whitehead would relinquish her parental rights after birth, and the couple would adopt the baby. After the baby was born, and Mrs. Whitehead relinquished her parental rights, she asked to spend some time with the baby because she felt depressed and a close bond to the baby. The Sterns complied, but after a few days, Mrs. Whitehead decided that she would not give the baby back to the Sterns. Eventually, the court ruled in the Stern’s favor, yet many months of agony passed for all those involved.
The baby M case illustrates a situation in which the surrogate wanted to keep the baby. There are also cases in which the intended parents do not want to take home the baby. There may be many explanations for why an intended parent(s) would choose not to take their baby home, but some of the most notable reasons have been due to the baby having health complications or a family has a change in social arrangements (such as divorce).
Legal agreements can be helpful to discuss what to do in these extreme cases. An important consideration to make in the legal agreement is how would a case of termination of the pregnancy be handled by all those involved. If a surrogate becomes pregnant with twins or one baby is diagnosed with a genetic condition, then would all parties agree to termination of pregnancy? While signing a contract can help with anticipatory guidance of how this kind of situation would be expected to go, there is one thing to abstractly discuss the situation and another to be in the situation. A surrogate may feel, once she is pregnant, that she can no longer proceed with a termination even if it is in the contract. The Atlantic writes an article on a case in which a surrogate is asked to terminate one of the triplets that she is carrying due to the increased risk for complications. However, the surrogate refuses this request.
The court cases involving surrogacy and changed minds illustrate the need for more protections, contract requirements, and laws as well as education. Some states and countries have actually determined commercial surrogacy illegal due to these cases. Commercial surrogacy is when the surrogate is compensated. There are times when it is an altruistic act and no payment is received; this type of surrogacy is generally not outlawed. However, there are also potential concerns when a country or state outlaws access to reproductive care which is further discussed in the article, Legal Implications: Cross border assisted reproductive technologies.
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* This blog constitutes general information about genetic testing and medical screening. This blog does not offer or provide medical advice or diagnosis, and nothing in this blog should be construed as medical advice or diagnosis. Do not rely on the information in this blog/article to make medical management decisions. Please consult with a medical professional before making those decisions. Do not delay in seeking professional medical advice if you think you have a medical concern. Do not disregard professional medical advice based on any information received in this blog.
