Some Observations Concerning the Law of Surrogacy
Dec. 15, 2015
How to Use This Information Source
The following information is designed to create awareness of the numerous issues involving the law on surrogacy. It is by no means comprehensive. The issues enumerated here are not appropriate in all states nor at all times. Some states regulate the area of surrogacy; some do not; some ban it.
This paper is designed solely to point out potential pitfalls or areas that require the attention of couples considering surrogacy. Those who do embark on a brave new world, and must have some general appreciation for the issues with which they will be confronted, and possible options at those junctures.
This source is not designed to be "scholarly", but is designed for lay people, unschooled in these issues.
Of paramount importance is the fact that legal aspects must be considered an absolute floor to those entertaining the surrogacy option. Merely because a couple might be able to fit their particular surrogacy venture within the framework of the existing law in a particular state, does not justify ignoring the other essential disciplines inherent in surrogacy.
II. The Surrogacy Team
Surrogacy is a team effort, requiring the coordinated efforts of trained, skilled professionals, along with the infertile couple desiring surrogacy, the surrogate, and the surrogate's family. These professionals include:
Agencies and Surrogacy Locators
For those who can afford the option, use of agencies makes abundant good sense. Agencies are skilled in coordinating the surrogacy process, from initial locating of surrogates, through the counseling of all involved following the birth of the child. Specifically, the agency is skilled in answering inquiries, mediating, areas of potential conflict, addressing sensitive areas, projecting course of events during the surrogacy, and in assisting the surrogate and the infertile couple in the separation and transition following the birth of the child.
The often considerable cost of using agencies prices surrogacy beyond the reach of many infertile couples. These couples must then locate a surrogate, who many times is a family member or friend. If this is not a possibility, the infertile couple must seek a third party to serve as the surrogate. There may be prohibitions against advertising for potential surrogates, and there may be distinctions under local law between those willing to serve as gestational surrogates versus those wanting to be artificially inseminated. States may require the use of an agency or the employment of an attorney.
Once a surrogate is located, the infertile couple must assemble the surrogacy team of professionals in order that they perform their essential tasks. Some couples are better equipped to coordinate this undertaking than others.
Until recently, mankind's experience was that a pregnant woman was the mother of the child she was bearing. That is no longer true in the gestational surrogacy option, and the normal presumptions concerning motherhood (and how the law recognizes it)are not necessarily correct. The same holds true for oocyte (egg)donation.
Under normal circumstances, many states presume that a man who is married to a pregnant woman, either at time of conception or time of delivery, is the father of the child. This presumption would wreak havoc if left to stand unrebutted in the surrogacy context. Numerous other considerations follow in the body of the text which follows.
Are all infertile couples candidates for surrogacy in its different manifestations? Once medical practitioners have addressed the physiological issues, what are the psychiatric and psychological issues?
Who is an appropriate candidate to be a surrogate? Does her husband or boyfriend concur? How is the pregnancy coordinated between the infertile couple, the surrogate, and the surrogate's family? How does the infertile couple bond with the child to be born? How is the surrogate assisted in the emotionally difficult scenario of parting with the child upon its birth?
What will the child be told concerning the circumstances of its gestation and birth? What interest does the surrogate, as well as the surrogate's family, have in monitoring the development of the child after its birth, considering the compassionate impulses which lead most surrogates to agree to bear and deliver someone else's child?
Obviously, these mental health practitioners are essential to the surrogacy process.
Medical Doctors and Technicians
These are the individuals who make surrogacy possible, in addressing the physiological, medical, and other reasons for infertility. They must conduct thorough profiles and examinations of the infertile couple, as well as the surrogate. They must screen for genetic as well as infectious disease. They must extract ova (eggs), fertilize them in vitro ( test tube ), and surgically implant the embryos into the uterus of the surrogate. Their options are as varied as the sources of infertility, and there are numerous treatments available, and constantly evolving.
In artificial insemination surrogacy (where the wife is the infertile member of the marriage, but her husband is capable of conceiving a child), the doctors must again screen for genetic, as well as infectious disease. They then use the husband's donated sperm to artificially inseminate the surrogate.
With traditional artificial insemination (where the wife is capable of conceiving and bearing a child, yet the husband is the infertile member of the couple), the physician, either alone or in concert with a reputable sperm bank, screens the donated sperm for genetic, as well as infectious disease, and artificially inseminates the wife.
In donor gestational surrogacy (where the wife's eggs(ova) are not suitable for conception, but where eggs (ova) are donated by a third party, fertilized in vitro, and the embryo is then placed in the wife's uterus in order to carry the child to term), the physicians screen the surrogate for genetic and infectious disease, extract the ova (eggs) from the surrogate, fertilize in vitro the donated eggs of surrogate with the sperm of husband, and place the embryos into the wife's uterus so that the wife carries the child to term.
Obstetricians and gynecologists are essential as in any pregnancy.
Hospital Staff and Administration
An informed and caring hospital staff is essential for the delivery of a child born through surrogacy, from accommodation of the infertile couple in the birthing process itself, to the establishment of procedures as to who will authorize medical treatment on behalf of the child, how birth certificates shall issue, and how the child and surrogate shall be discharged. Sensitivity to the novelty of the birthing arrangement, along with honoring the privacy expectations of those involved, are paramount.
In the event the hospital staff and administration is not informed or sensitive on surrogacy issues, the result is often robbing the infertile couple and the surrogate of the pleasure and anticipation of the birth of the child.
In sum, the building of a family should not hinge on mere matters of the law. Legal issues are essential, but not sufficient. Merely because a birth can be arranged under the laws of a particular state does not guarantee the successful building of a family.
Finally, it can not be emphasized enough that all involved should strive to avoid any legal disputes. Legal disputes are unpleasant enough in the "usual" context (and, hence, the high esteem in which some view lawyers); yet in the possible emotionally wrenching disputes involving the birth of a child, the last thing an infertile couple, a surrogate, or even an involved court wishes is to be confronted with a dilemma which would try the wisdom of Solomon.
III. Historical Context and Overview
There is no unified body of "law" concerning surrogacy. It is an area in a constant state of flux, where traditional family building approaches are being buffeted by newly-available technological procedures and by the decisions of infertile couples to act upon them.
Much of the change is technologically driven. In vitro fertilization and embryo transfer might have been envisioned by Aldous Huxley in the early part of this century (in less than favorable terms), but were not realized until quite recently.
Other changes are rooted in behavioral change, and are decidedly "low tech". An example is the artificial insemination of a surrogate who is the genetic mother of the child to be born, but who chooses, in accordance with pre-arranged agreement, to surrender the child to the sperm donor and his spouse to raise as their own child.
Obviously, artificial insemination is not of recent vintage; what has changed is the gender of the infertile party within the marriage. Statutes in place for decades in numerous states envision an infertile husband who (along with his wife) chooses to utilize donated semen to impregnate his fertile wife or use this process to increase the chances of a husband's (of marginally fertile sperm) impregnating his wife.
Only recently have couples realized that a third party to the marriage may agree to become impregnated with the semen of the fertile husband and ultimately allow the in fertile wife to treat the child to be born as her own offspring. Curiously, this has not always been the case. Two surrogacy arrangements were documented in the Old Testament. Sarah, wife of Abraham, was infertile, and enlisted her maid, Hagar, to bear Abraham's child. Genesis, Chapter 16. Isaac and his barren wife, Rachel, relied upon Rachel's servant, Bilbah, to bear Isaac's child. Genesis, Chapter 30.
As a consequence, traditional "laws on the books" concerning paternity, maternity (if these laws address that issue at all),artificial insemination, issuance of birth certificates, parental rights and obligations, informed consent for medical procedures, "Roe v. Wade" questions, medical insurance, infectious disease, pre- and post-natal support obligations, to name but a few, are wholly inadequate.
The law on these issues has customarily been determined on a state by state basis, with little federal intervention. Certain acts in the divorce and family law context, such as the Uniform Reciprocal Enforcement of Support Act, the Uniform Child Custody Jurisdiction Act, and the Interstate Compact on the Placement of Children, were designed to address common interstate issues where it would be beneficial to have reciprocal enforcement mechanisms among the various states. These acts have been adopted by a number of the states.
However, issues touching upon surrogacy have not been the topic of any generally adopted "uniform acts", and as a consequence, the law of surrogacy is a patchwork quilt, varying considerably from state to state.
While some states have established laws permitting surrogacy, and some have passed laws outlawing surrogacy, the majority of states have yet to address the issue(s) at all. In these states, lawyers representing families opting for surrogacy have, of necessity, taken innovative approaches.
Hence, it must be emphasized that the general observations in this source are not uniformly applicable to any particular state. Furthermore, the treatment of these issues is superficial at best and does not provide definitive answers in any particular state.
Matters of this gravity require that you seek competent legal counsel whenever surrogacy is contemplated.
Pregnancy and childbirth are complicated enough under traditional legal analysis. However, when the pregnancy occurs in the uterus of a stranger to the marriage (i.e., when the surrogate carries the child), the inherent complexities expand at an exponential rate.
The couple who will ultimately be the parents of the child has a decided interest in what is occurring in the uterus of a stranger to their marriage, the surrogate. The usual expectations concerning privacy during the pregnancy are "out the window".
For example, other individuals are keenly interested in the menstrual cycle of the surrogate, and if and when she becomes pregnant. Medical evaluation and screening is essential, so fertility experts will thoroughly examine the potential surrogate to find out if she is an appropriate candidate, in general, for pregnancy and, in specific terms, whether she is an appropriate candidate to bear the child of the infertile couple. Psychological screening and counseling of the potential surrogate is essential in order to discern not only whether the surrogate is an appropriate candidate, but also to assist the surrogate and the infertile couple with coping with the pregnancy, as well as the post-partum separation following the birth of the child.
Everyone contributing a genetic component to the pregnancy(and their sexual partners) needs to be thoroughly evaluated for a sexually transmitted disease, and the genetic history of both the egg and sperm donor must be evaluated for hereditary disease or conditions.
The surrogate must agree to abstain from sexual relations around the time of embryo transfer or artificial insemination, and the surrogate must furthermore agree to abstain from drugs, alcohol, and tobacco consumption during the course of the pregnancy, as well as to comply with the nutritional dictates of the obstetrician. Strenuous exercise or work must often be avoided following embryo transfer.
While a pregnant woman would customarily expect to consult with her physician in private, the surrogate may expect one or both of the infertile couple will accompany her to obstetric appointments if they are in the same local area, and the surrogate's medical records and test results would be fully available to the infertile couple.
The thorniest considerations address "Roe v. Wade" questions when amniocentesis or other tests are performed. The surrogate should expect the infertile couple to be present at birth, and the most intimate details of the pregnancy will be explored at court proceedings where it is established who are the ultimate parents of the child.
Privacy is a luxury unavailable in the surrogacy context. However, this is not to say that those involved in the surrogacy should be subjected to unwarranted public scrutiny. Anti-disclosure provisions concerning publicity are paramount, and legal proceedings should be closed to the public (to the full extent possible), and court files should be sealed to unwarranted and prying eyes, to the fullest extent possible.
This is simply one area of consideration, and provides some indication as to the complexities involved.
It is most understandable to consider the steps involved in chronological order (although the actual order of occurrence may vary from the template which follows):
At some point, the infertile couple will seek medical analysis as to the source of their infertility. (This outline will not address medical or pharmaceutical courses of treatment, except where there are legal components to the issues.)
The course of treatment requires, in many states, adherence to the concept of "informed consent". The notion is that in elective courses of treatment, the patient should be provided with sufficient information by the attending physicians so that the patient can make a knowing and intelligent decision as to whether to proceed with a particular course of treatment. The doctors or their practice group should provide information as to:
The steps or procedures to be undertaken; The risk these courses of treatment hold to the patient; The likelihood of injury and side effects; and The likelihood of success of the procedures.
Sperm, Eggs, and Fertilization
The securing of sperm, eggs, and fertilization are also subject to legal oversight.
Where the husband in the infertile couple shall provide the sperm, less legal oversight is required. The extraction is generally much more "low tech" than egg (oocyte) retrieval.
Where sperm shall be donated from other sources (such as a sperm bank), bare legal requirements should be considered an absolute floor. The sperm should obviously be screened for genetic components as well as the risk of sexually-transmitted disease. The warranties and disclaimers of the sperm bank should be thoroughly reviewed.
Many reputable sperm banks or infertility practitioners now require the freezing of donated sperm. In this manner, the sperm donor may be examined for infectious disease at the time of donation, and then reexamined several months later, prior to using the sperm. In this manner, any sort of infectious incubation period can be taken into consideration before the sperm is used.
The law may distinguish between donated sperm of a known source, versus that anonymously donated. Particular care should betaken to assure that sperm donated from a known source does not subject the provider to responsibility for any child to be conceived, nor does it confer any parental rights in the donor.
Generally, compensation of sperm donors is not prohibited.
Securing Donor Eggs (Oocytes)
Obtaining eggs (oocytes) is obviously a much more elaborate procedure, or, in the alternative, is inseparable from the pregnancy itself if the surrogate is to be artificially inseminated.
Treatment with pharmaceuticals generally accompanies egg donation, and the actual extraction of the eggs from the donor is an invasive surgical procedure. Licensed medical practitioners are required, and the course of treatment should be accompanied by compliance with informed consent.
As egg donation is of much more recent vintage, many states have not specifically adopted laws concerning it. As a matter of equal protection, it is justifiable to treat the donated female component (eggs/oocytes) in the same manner as the state would treat the donated male component (sperm). However, it is less likely that eggs would be from a truly anonymous donor and, hence, the same considerations would apply as for a known sperm donor.
As to compensation, if a state allows compensation to sperm donors, it would seem unlikely that compensation for donated eggs would be proscribed.
However, if fertilized embryos were donated, then compensation should be much more closely scrutinized due to some states' proscriptions against "baby selling" in the adoption context. Obviously, there is a distinction between a fertilized embryo and a born child, yet it must be remembered that the laws of many states have not been revised to reflect present medical technology. As terms such as "parent" are not precisely defined in many statutes, it could be argued that such compensation results in "baby selling", an act which in many states is a felony.
Fertilization carries with it a panoply of legal considerations.
Who May Fertilize
Numerous states permit only licensed medical practitioners to artificially inseminate, and numerous states carry felony penalties for unlicensed or unqualified artificial insemination. Obviously, if the fertilization is in vitro, then it is presumed only licensed medical practitioners would be performing these tasks.
Often, eggs which are fertilized with sperm(embryos) require storage. This may be because a surrogate has not been located to carry the embryo, or initial implantation has not resulted in pregnancy and additional implantation cycles must be undertaken. Furthermore, the ovary stimulation induced by the medical course of treatment may result in a number of eggs being immediately produced, which can be preserved through cryopreservation for future use.
It is essential to reach agreement as to how any unused embryos will be treated. There is obviously a continuing cost to the reproductive clinic for preserving the embryos, and these fees must be agreed upon. Unused embryos could be potentially donated to others, destroyed, or utilized for medical research purposes. These issues need to be clearly delineated in the agreement.
Ultimately, the in vitro-fertilized embryo will be implanted in the surrogate. This is an invasive medical procedure, and prudent fertility clinics/medical practitioners will (even if the law in the particular state is silent on this matter) require a contract between the infertile couple and the surrogate prior to implanting of the embryo.
The implanting procedure itself is subject to informed consent requirements and constitutes the practice of medicine which should be performed only by a licensed medical practitioner. Good practice would require proof of disclosure of possible genetic disease or condition.
VI. Selection of Surrogate
Physiological, psychiatric, psychological, and emotional considerations are paramount in selecting a surrogate.
The medical practitioners must be convinced that the surrogate is capable of carrying the child, and the psychiatric/psychological/counseling professionals must be convinced that the surrogate is appropriately motivated and has the qualities essential to becoming a surrogate.
Only then must one consider legal ramifications. They include:
How to Locate Surrogate
Does the law of the particular state proscribe or prohibit surrogacy, and hence, should a surrogate be sought who is a resident of a particular state, or should the birth be arranged in a particular state? The infertile couple must consult with legal counsel on these issues.
How does an infertile couple "link up" with potential surrogates? Do the laws of a particular state require an agency or a lawyer to make these contacts or inquiries (either privately or through advertising)? Where the surrogate will have a genetic link to the child to be born (such as through artificial insemination surrogacy, rather than gestational surrogacy), there may ultimately be a step-parent adoption, where the genetic mother (the surrogate) is replaced with the wife of the sperm donor. In these instances, the adoption laws of the particular state may well have to be consulted as they relate to locating pregnant "mothers" willing to place their child for adoption.
Traditionally, childbirth occurred to married couples, and hence legitimacy of the child was generally presumed where the parents were married at either at the time of conception or time of birth.
However, this was not always the case, and there are often provisions (generally requiring some form of court supervision such as filing of affidavits or conducting of judicial hearings) to determine paternity in the event the father of the child is not the husband of the mother.
As the husband of the surrogate is a necessary party to these procedures (as many states presume him to be the genetic father of the child), the surrogate's husband must be in full accord and endorse the surrogacy. Otherwise, a contested legal proceeding could well ensue.
The same considerations would apply to an unmarried surrogate with a semi-permanent boyfriend or "significant other". Some states might allow such an individual to acquire the rights of a common law husband.
In any event, the surrogate's husband or significant other would have to agree to sexual abstention during the periods of fertilization or embryo transfer. These men are also necessarily subject to testing for infectious disease to the extent these diseases could impact the pregnancy or delivery of the child.
Compassionate Versus Compensated Surrogate
The availability of compensation to the surrogate, along with its extent, must be seriously considered. The law in this area developed in the adoption context, where "baby-selling" by pregnant women is often proscribed. In many states it is a felony, punishable by significant fines and multiple years in prison.
The matter is highly regulated in the adoption context, generally requiring disclosures of amounts paid (and their purpose) in formal adoption proceedings, and the allowable amounts are often restricted to reimbursement of medical, legal, and possibly living costs. Adoption agencies often have greater leeway in allowed expenses to be reimbursed to the mother. Compensation may not be allowed for lost wages due to illness during the pregnancy. The particular state's laws must be consulted on all surrogate compensation issues.
Where surrogacy is allowed in a particular state, the statute should be scrutinized as to allowable elements of compensation or reimbursement. Where it is not, the infertile couple (and their legal counsel), along with the surrogate (and her legal counsel) must weigh the relative risks in determining whether these laws would apply in the surrogacy context. They most probably do in artificial insemination surrogacies, where a step-parent adoption would follow the birth of the child (as the infertile wife replaces the surrogate genetic mother). Hence, compensation is probably limited.
In the gestational surrogacy context, compensation might be more liberal, based on the following notions:
The fact that the pregnancy was deliberately arranged, consciously undertaken, and hopefully, the topic of a signed contract between the parties, where all of these matters were agreed upon in advance (vis a vis the generally unplanned pregnancies in the adoption context);
The fact that the pregnant surrogate has no genetic ties to a child she is carrying; and
The support obligations which a father has to a child in an "out of wedlock" situation. In most states, if the father is not married to the surrogate, he nonetheless has a support obligation to the child when born, often through the age of majority. In some states, the father also has a prenatal support obligation to the child, as the law recognizes that it is highly desirable to arrange for the providing of adequate prenatal care to the yet born child.
Where Child is to be Born
Among the obvious issues is the desire of the infertile couple to monitor the pregnancy (and whether that is possible or practical in a distant state), and another element involves the state of the child's birth and its jurisdiction to issue birth certificates. Even where a couple is traveling through another state, if the child is born in that state, that state has a sufficient connection or nexus to justify its issuance of the child's birth certificate.
The laws of that state would, therefore, apply concerning which individuals are listed as father or mother on the birth certificate, as well as what procedures must be undertaken to overcome usual presumptions such as the listing of the surrogate's husband as father of the child. While some states in the past allowed an unmarried woman delivering the child to name the child's father on the birth certificate, that is often not an available option currently.
VII. Necessity of A Contract
Some states require a contract among all parties to the surrogacy birthing arrangement, and there are often requirements that the contract address certain issues. However, good practice requires that a host of additional issues be addressed in a contract in order to forge a true "meeting of the minds" on what is undoubtedly one of the most personal and complicated of concerted human actions.
Where contracts are not required, they are still absolutely essential. Many jurisdictions permit private agreements (contracts)so long as the actions contemplated do not run afoul of the public policy of the state. Few jurisdictions have fully tackled all of the issues manifest in a surrogacy arrangement, and have yet to fully determine the public policy issues involved. Hence, the opportunity is ripe for private agreement, although there is no certainty whatsoever, if challenged in court, that the state would embrace all components of a surrogacy arrangement.
A grossly underestimated aspect of the contract is that it requires the involved parties to focus on an exceedingly complex undertaking which involves some of the thorniest issues of our day. The infertile couple, the surrogate, and the surrogate's family must all synchronize their expectations. Otherwise, the prospect of expensive, highly publicized, and emotionally wrenching litigation increases dramatically. The points addressed in the contract should be fully explored, not only by the parties and legal counsel, but also in conjunction with the psychiatrist/psychologist/counselor.
Most infertility clinics require a contract between the infertile couple and the surrogate, if for no other reason than to cover its flank in the event a dispute develops between the infertile couple and the surrogate as to biological parenthood, parental rights, and custodial aspects of the child to be born.
The following is by no means an exhaustive listing, but can serve as a "checklist" of issues which the infertile couple and the surrogate should explore with their retained legal counsel in order to assure compliance with local law.
Parties To The Agreement
These include the infertile couple, surrogate, and surrogate's husband (or "significant other" if there is such a relationship). Identified individuals or groups, while not absolutely necessary to the contract itself, should include designation of the infertility physician, the obstetrician, the psychiatrist/psychologist/counselor, the hospital where it is anticipated the child shall be delivered, the agency if one is being used, and governmental authorities with whom coordination is required.
They will be forging one of the most important agreements of their lives, fully entrusting their child (either through gestational surrogacy or artificial insemination) to another person, who will carry, nurture, and surrender the child upon birth to the infertile couple.
The surrogate is surrendering aspects of her life which go to the root of privacy expectations. She shall agree to have others supervise her pregnancy, shall agree to rigorous prenatal care, and she shall subject herself to attendant risk through the course of medical treatment. She shall also subject herself to risks customarily found in pregnancy and childbirth.
A contract is essential even if the surrogate is related to the infertile couple. While it is somewhat awkward to deal at arm's length with family members, disagreements unfortunately arise within the extended family context. Also, a contract is essential in order to forge a "meeting of the minds", both in the legal as well as the psychiatric/psychological/counseling contexts.
Surrogate's Husband/ Significant Other
Most laws presume that a man married to a pregnant woman either at the time of the conception or at the time of the birth of the child is the father of the child. This makes abundant good sense in the vast majority of instances, but obviously runs counter to reality as well as expectations in the surrogacy arrangement. Also, the surrogate's husband is involved to a very large, though peripheral degree, inasmuch as his wife is pregnant. He must agree to sexual abstention at certain times, and is subject to medical scrutiny for infectious disease. His wife shall be undergoing risk, and it is often necessary to scrutinize his group medical plan as to its coverage of the surrogacy.
The infertility physician or clinic must be designated under the agreement, as this is a matter of accord between the infertile couple and the surrogate for medical care preference reasons, along with the fact that the infertile couple shall agree to bear the costs of the infertility physician/clinic in the highly likely event that there is no medical coverage for the procedure. Astute infertility physicians/ clinics demand a contract between the infertile couple and the surrogate, even if one is not required by law. As a dispute might arise between the infertile couple and the surrogate, the infertility physician/clinic would be wise to insist on acknowledgments of maternity and paternity in the agreement, in advance of any medical procedures.
Other issues of interest to the infertility physician/clinic, which may be addressed in this agreement or in collateral agreements, are issues concerning cryopreservation of embryos, as well as informed consent to the medical procedures.
While the obstetrician primarily renders medical services to the surrogate, the performance of these duties shall ultimately inure to the benefit of the infertile couple. The infertile couple shall have full access to the medical records of the surrogate, and can be expected to meet periodically with the obstetrician during pregnancy checkups. Furthermore, the infertile couple may well bear the costs of the obstetrician's services in the event they are not covered by an existing health policy.
The costs of these services, rendered to both the infertile couple as well as the surrogate, will likely be borne by the infertile couple. The psychiatrist/psychologist/counselor occupies a pivotal role in screening the surrogate candidate; helping the parties to reach accord on the surrogacy issues during pregnancy; assisting in the process of the surrogate surrendering the child to the infertile couple; and counseling the surrogate on any lingering concerns following surrender of the child to the infertile couple.
The hospital where it is anticipated the child shall be delivered should be designated, as the hospital must be sensitive to surrogacy issues. These include accommodating the infertile couple in the birthing process, assuring privacy from those not intimately or necessarily involved in the procedures, as well as realizing who is to be consulted on medical authorization issues on behalf of the child. The hospital and delivering physicians generally provide birth certificate information to the appropriate governmental authorities and, hence, need to "be in the loop" on the surrogacy arrangement.
The government has an interest in assuring that both a mother and father are legally responsible for the upbringing of a child, along with appropriately designating the individuals who will declared to be the father and mother of the child. The government is directly involved in the issuance of birth certificates and, hence, needs to be involved in the procedures where these decisions are made. An overriding issue is which state's authority is involved, which often hinges upon where the child shall be born.
Numerous procedures must occur prior to impregnating the surrogate. They include the following:
The surrogate must be fully evaluated by the infertility physician/clinic to assure that she is an appropriate candidate to serve as a surrogate. The surrogate's medical history must be fully disclosed, and she must be examined by the infertility physician/clinic. The test results shall be disclosable to the infertile couple.
The surrogate, as well as her personal history, must be fully screened by the psychiatrist/psychologist/counselor in order to assure that she is an appropriate candidate for surrogacy based on these criteria. The test results shall be released to the infertile couple and the infertility physician/clinic.
The infertile couple, surrogate, and surrogate's husband (or "significant other") must be evaluated for genetic components and/or for the risk of sexually transmitted disease.
These procedures are obviously to be performed by a licensed medical professional, i.e., the infertility physician/clinic. Procedures include:
Agreement to Adhere to the Instructions of the Infertility Physician/Clinic
Rigid adherence to the directives of the infertility physician/clinic is essential, in order to assure that the reproductive cycles of both the infertile wife and the surrogate are concurrent (if applicable) and timing is also a significant consideration in artificial insemination.
Course of Treatment
Extensive pharmaceutical treatments are often required in the gestational surrogacy option and egg extraction, and subsequent implantation of embryos is an invasive procedure as well. Artificial insemination is obviously invasive.
The surrogate must agree to the medical course of treatment and to abide by the drug and pharmaceutical protocol as prescribed by the infertility physician/clinic and obstetrician.
While "informed consent" may be separately handled by the infertility physician/clinic, good practice would also dictate that the infertile couple and surrogate agree directly on the procedures to be followed, as the infertile couple is encouraging these elective procedures by the surrogate. In the usual informed consent scenario, an individual undertakes a course of treatment with a physician solely for their own health and benefit, rather than for the ultimate benefit of the infertile couple as is true in surrogacy arrangements.
Amount of Time Surrogate Shall Be Available for Implantation/Insemination Procedures
Often, the surrogate does not become pregnant during the first cycle, and it is unrealistic to expect that the surrogate(or the infertile couple) would wish to pursue this course of treatment into the indefinite future. A set period of time must be decided upon (nothing prevents the parties from agreeing to a later extension).
Decisions to Terminate Prior to Pregnancy
Either party may ultimately choose to terminate the arrangement, premised upon lack of results, medical risk to the parties, or for financial considerations.
Both the surrogate and surrogate's husband (or "significant other") must agree to abstain from sexual relations during sensitive periods concurrent with the time of embryo transfer or artificial insemination and in some cases of in vitro fertilization, until fetal heartbeat has been established.
A panoply of issues emerges upon the surrogate's becoming pregnant. They include:
Agreement to Carry the Child or Children Until Delivery
Privacy/Roe v. Wade Issues
As established by the United States Supreme Court, fundamental rights of privacy govern a woman's ability to control her reproductive freedom and, hence, her pregnancy. Surrogacy injects another element into one of the most hotly debated issues of our day-- the surrogate has agreed to become impregnated, and she may not even have a genetic tie to the child she is carrying.
The law has not developed appreciably in this area, and hence it is of paramount concern that the parties address this issue fully, with the assistance of the psychiatrist/psychologist/ counselor in order to agree in advance as to the course of action to be taken upon the happening of certain occurrences. The agreement may or may not be legally enforceable on these issues. The agreement should include:
Genetic or developmental testing, such as for amniocentesis and chorionic villus.
Genetic testing to substantiate actual parentage.
Protocols concerning risk assessment to the surrogate and weight to be afforded the recommendations of the obstetrician.
Expense reimbursement in accord with the various scenarios.
Acknowledgments of the infertile couple to assume all parental obligations for the child, regardless of its physical or mental condition, along with enforcement mechanisms in the event the infertile couple seeks to shirk their agreed upon obligations.
Protocols must be established that surrogate shall comply with the directives of obstetrician, except in medical emergencies.
Surrogate shall agree she shall not place the fetus at risk during pregnancy and shall refrain from behavior which bears inappropriate risk. These include:
Illegal drug consumption;
Non-prescription/prescription medication, not authorized by the obstetrician.
Prenatal Care Compliance
Just as the surrogate agrees not to injure the fetus through inappropriate or high risk behaviors, correspondingly she must agree to comply with obstetrician's instructions which will benefit the development of the fetus, such as a course of treatment including progesterone injections and oral medications during the first trimester of the pregnancy.
Under certain circumstances, Cesarean delivery may be mandated. For instance, contracting of certain sexually-transmitted diseases such as herpes, may warrant inclusion of such a provision.
Cooperation and Required Filing or Hearings
The laws of a particular state may permit determination of paternity and maternity of the child prior to birth of the child. If so, the following matters should be addressed:
Birth certificate designation of mother and father.
Determination of parental rights and who shall constitute mother and father of the child to be born.
Release of possible parental liability and responsibility of the surrogate and surrogate's husband.
Arbiter of consent to medical procedures on behalf of the child. If possible, clarification as to who shall make medical decisions on behalf of the child to be born is highly desirable. Otherwise, it is possible that pediatricians and hospital staff will be uncertain as to who should authorize medical treatment on behalf of the child (such as customarily arises on the issue of circumcision or in a premature birth).
Full cooperation of all parties to the surrogacy. All must agree to provide affidavits, court appearances and/or testimony in order to effectuate the appropriate designation of mother and father of the child.
The agreement should clarify the circumstances concerning the onset of labor, actual birth, the transition of the child from the surrogate's uterus to the physical custody of the infertile couple, as well as the lingering issues concerning the surrogate and her health.
Labor and Delivery
Except in the case of emergency, surrogate should promptly notify infertile couple in order that they be able to attend the delivery of the child.
Place of Birth
The hospital where it is anticipated where the child shall be born should be designated in advance, due to insurance reimbursement considerations; proximity to infertile couple and surrogate's residences or places of employment; and coordination with hospital staff to address unique aspects of surrogacy delivery.
Transfer of Physical Custody
The surrogate shall agree to transfer physical custody of the child to the infertile couple in the gestational surrogacy context, and to the genetic father in the artificial insemination context in a manner consistent with the parental obligations of the declared father and/or mother.
Obligation of Infertile Couple to Assume Custody And Responsibility For The Child
Infertile couple must agree to assume custody and all financial responsibility upon the birth of the child, regardless of its physical or mental condition. There should be enforcement mechanisms in the event that the infertile couple refuses to comply with this element of the agreement.
Naming of The Child
Infertile couple shall name the child or children to be born, and surrogate will not attempt to name the child.
Contingency For Death of Infertile Couple
If either of the infertile couple should die prior to discharge of the child from the hospital, the remaining spouse should be obligated to solely care for and provide for the child. In the event both of the infertile couple predecease the child's discharge from the hospital, guardians should be named and life insurance in sufficient amounts obtained.
Disposition of any frozen embryos which are maintained by the infertility physician/clinic should be addressed in the agreement or in the last will and testament of the infertile couple. There are obvious costs to continue to maintain frozen embryos. Methods of disposal can be quite controversial, so they should certainly be addressed. They include:
a) Donation to known or unknown couples;
c) Tissue donation;
d) Medical research.
Post-partum Psychiatric/Psychological/Counseling Care of Surrogate
The issue of psychiatric/psychological/counseling care should be broached in the agreement, in order to ease the transition of the surrogate from physical carrier of the child during pregnancy to the juncture where she is separated physically from the child. Costs of treatment should be addressed.
Cooperation and Required Filing or Hearings
The laws of a particular state may require determination of paternity and maternity of the child following birth of the child. In the artificial insemination surrogacy, there may well be two required hearings-- one in which paternity is established prior to the birth of the child; "maternity" of the child would be established following the birth of the child, as the law would frequently treat the infertile wife as an adoptive step-parent, where the infertile wife replaces the surrogate/ genetic mother.
The following matters should be addressed if permitted by law:
a) Birth certificate designation of mother and father.
b) Determination of parental rights and who shall constitute mother and father of the child.
c) Release of possible parental liability and responsibility of the surrogate and the surrogate's husband.
d) Arbiter of consent to medical procedures on behalf of the child. If possible, clarification as to who shall make medical decisions on behalf of the child is highly desirable. Otherwise, it is possible that pediatricians and hospital staff will be uncertain as to who should authorize medical treatment on behalf of the child (such as customarily arises on the issue of circumcision).
e) Full cooperation of all parties to the surrogacy. All must agree to provide affidavits, court appearances and/or testimony in order to effectuate the appropriate designation of mother and father of the child.
Establishment of Actual Paternity/Maternity
There may arise a situation where genetic lineage of the child is questioned (such as where the surrogate might have breached the sexual abstention agreement during conception or embryo transfer). The parties should fully agree to make themselves available for paternity/maternity determination in the event this unfortunately becomes an issue.
With the difficulties inherent in a pregnancy, the last thing any of the parties need is unwarranted scrutiny from media other or curiosity seekers. Groups and individuals opposed to surrogacy should not have an opportunity to interfere or complicate the pregnancy and delivery of the child.
Disclosure of the surrogacy relationship should be limited to the individuals necessary for its realization.
Issues such as publicity, authorship of books, or appearance on media should also be contained in the agreement.
The filing of pleadings and conduct of hearings or required government filings should be coordinated so as to assure maximum confidentiality.
While this matter has been touched upon elsewhere, good practice dictates that the medical and legal risks be disclosed to all parties involved. While informed consent questions customarily are directed to treating physicians, in the surrogacy context, the infertile couple is requesting the surrogate to undergo medical treatment which carries with it attendant risks. In the usual informed consent context, the individual would evaluate the risks and desirability of elective medical procedures, for the sole benefit of that individual. In the surrogacy context, however, the infertile couple intervenes in the customary doctor-patient relationship and is advocating that the surrogate undertake risk for the benefit of the infertile couple.
As a consequence, it makes abundant good sense to assure:
The procedures and courses of treatment are fully disclosed.
The potential benefits are disclosed.
The potential risks, along with their likelihood of occurrence are disclosed.
The probability of success is documented.
Disclosures to the Surrogate
a) Risks of customary pregnancy and childbirth.
b) Egg extraction (which may occur in the artificial insemination context where the surrogate has undergone tubal ligation).
c) Risks of implantation.
Disclosures to the Wife of the Infertile Couple
Where the wife's eggs are satisfactory for conception, yet she is unable to carry the child to term, then the risks of egg extraction should be disclosed.
The issue of compensation of the surrogate is often nettlesome, if not prohibited completely or limited to reimbursement of specific forms of expenses (such as generally accepted reimbursement for medical expenses related to the pregnancy). Again, consult the law of the particular state, as compensating the surrogate might fall under prohibited baby selling.
Proscriptions against baby selling (in the adoption context) often provide the template as to what forms of reimbursement or compensation are acceptable. The following considerations may shed some light on whether particular forms of reimbursement or compensation are allowed:
Support Obligation of Child Born Out of Wedlock
A child born to an unmarried surrogate or a surrogate married to one other than the sperm donor is generally considered to be "out of wedlock" or illegitimate. The woman bearing the child generally has a support obligation to the child, and the genetic father of the child generally has a support obligation to the child, absent determination by a court.
Failure to support one's genetic child "either within or outside of lawful wedlock", often constitutes the criminal offense of child abandonment.
Abandonment of Pregnant Woman in Dependent Condition
Failure to provide for a dependent pregnant woman(often restricted to a wife of the impregnating male) may constitute a criminal offense.
Prenatal Support Obligation
Some states require the impregnating male to provide support for a child not yet born, recognizing that such a regimen is highly desirable in order to assure the healthy gestational development of the child. These states have determined the mother(or surrogate carrier of the child) should not bear such prenatal expenses exclusively.
Components of Allowable or Prohibited Expenses
States often draw distinctions between what is allowed to be paid to or for the benefit of a woman impregnated in the "out of wedlock" context, who intends to relinquish the child to another. These include:
a) Medical Expenses
Medical expenses related to the delivery of the child are often permitted to be reimbursed.
b) Legal Expenses
Reasonable legal expenses which are not a clandestine form of a "finder's fee" for locating the baby, are often allowed.
c) Lost wages
Some states do not permit reimbursement for the surrogate's lost wages as a result of her pregnancy, nor for illiness resulting from the pregnancy.
d) Living expenses
States vary on whether the surrogate's living expenses are reimbursable.
Many states do not allow compensation of the pregnant woman in the adoption or surrogacy context, believing it either to be a disguised form of compensation for placing the child up for adoption ("baby selling"), or as offensive to public policy.
Life Insurance on Surrogate
Particularly if the surrogate has dependent children, the infertile couple should consider putting in place a policy of life insurance on the surrogate as a safeguard to the risks of childbirth (which the infertile couple requests that the surrogate bear). The policy customarily would become effective when surrogate undergoes fertility treatments, and should continue through childbirth.
Customary Contract Provisions
In most contracts, it is desirable to have certain customary provisions. These include:
Choice of Law Provision
States often allow the parties to an agreement to designate the law applicable to their contract, so long as there is a legitimate connection between the transaction and the state specified.
The formal designation of an address where legal notices or claims under the contract should be sent is desirable.
Entire Agreement Provision
This specifies that the agreement is complete and there are no oral understandings to the contrary that are not embodied in the written contract itself. Revisions to the written agreement are generally required to be in writing and signed by all of the parties.
Obviously, in a surrogacy context, the parties envision that they will not change or have other individuals substituted to carry out the terms of the agreement.
If a portion of the contract is invalid for whatever reason, then the balance of the contract does not fail for that reason.
Equity or Specific Performance
Remedies for breach of certain forms of contract are restricted to the payment of monetary damages. This is generally not sufficient in the surrogacy context, as the parties would most often request the court to compel the breaching party to perform or not perform some act.
As surrogacy birthing arrangements are novel, and it is rare where a state has determined that all facets of a surrogacy arrangement are enforceable, then it is preferable that the paties to the contract be so informed.
VIII. Paternity/Maternity Adjudication
As the laws of most states assume that a woman who gives birth to a child is the mother, and that her husband is the father of the child, there is generally some form of hearing or filing with the appropriate state agency or court. Otherwise, birth certificates probably issue in the names of other than the infertile couple.
The traditional laws on adoption presuppose no genetic ties to the child. One generally does not have to adopt one's own genetic child. However, if there is no established judicial mechanism for paternity/maternity/surrogacy determination issues, adoption may prove to be a "fallback" mechanism in order to establish that the infertile couple is declared mother and father of the child.
In artificial insemination surrogacy, it is often necessary to have a step-parent or similar adoption proceeding, whereby the genetic mother (the surrogate) is replaced as mother of the child by the wife of the infertile couple.
Advantages of Adoption
There may be certain advantages to an adoption in the event there is not a recognized paternity/maternity/surrogacy method of determination. These may include dovetailing of the law of the state and with sister states under the Interstate Compact on the placement of children, where the infertile couple and the surrogate do not reside in the same state.
Disadvantages of Adoption
a) Adoption by an infertile couple is inconsistent in the case of gestational surrogacy, as it would require adoption of the infertile couple's own genetic child.
b) Investigation by social agencies. Adoption generally requires a government mandated investigation of the individuals who seek to be declared the parents of the child. This includes home studies, extensive divulging of financial information, and other issues which would affect the desirability of placement of the child with the adoptive parents. There is a possibility that a social worker investigating the background of the proposed adoptive parents would recommend against adoption.
c) Application of "best interests of the child" standard. The Court must generally apply the "best interests of the child" standard in adoption matters. Genetic ties are often not an issue in adoption proceedings, and, hence, it is possible the court could disregard the genetic tie to the child or minimize its impact, in deciding against adoption.
Where these proceedings are allowed, they often more directly address the surrogacy arrangement.
Advantages of Paternity/Maternity/Surrogacy Proceedings
a) Truth. These represent the true nature concerning the parentage of the child. Adoption proceedings generally presuppose no genetic link to adoptive parents. In the longer run, explanations are not required to the child concerning why its genetic parents abandoned it.
b) Control by the Infertile Couple. In adoption proceedings, social agencies make recommendations as to whether the infertile couple would be appropriate parents. The court independently examines the circumstances of the infertile couple's financial status, living conditions, and predisposition to be appropriate parents in order to what is in the "best interest" of the child. This is generally not present in a paternity/maternity/surrogacy proceeding.
The law confers rights to genetic parents. Most laws presumptively award custody, control, and responsibility to genetic parents, and proof of this genetic tie to the child generally automatically places the genetic parents (the infertile couple) in control of the destiny of their child.
Disadvantages of Paternity/Maternity/Surrogacy Proceedings
a) Timing. These hearings may only be contemplated under the law as available options following the birth of the child. Obvious shortcomings in this scenario include uncertainty during the pregnancy and birth of the child as to its parentage and, hence, who makes medical treatment decisions on behalf of the child as well as who would have custody of the child pending this determination.
b) Proof of Genetic Tie. Generally, the parties to the action (infertile couple, surrogate, surrogate's husband)are in accord as to the maternity and paternity of the child. Courts often require additional evidence. Affidavits of the infertility physicians may suffice. Testimony may be required, from either the parties or possibly the infertility physicians. If the surrogate has undergone a tubal ligation, or her husband a vasectomy, this is corroborating that the infertile couple are the parents of the child. Blood type analysis and genetic testing may be required, which is much more likely following the birth of the child.
Egg Donation/Cryopreservation Contracts
Whether by law or by custom and practice, egg donation contracts are often required by infertility practitioners. Cryopreservation, or the freezing of embryos for later use, is often coordinated in the egg donation contract.
Elements of an Egg Donation Contract
Identification of Parties
Appropriate parties include the donor, her husband if married, the sperm donor/father, the mother/recipient (the woman who shall carry the child and ultimately be deemed its "mother"), as well as the attending infertility physicians/clinic. The various responsibilities of each should be set forth in the contract.
The egg retrieval should coincide with sperm donation, in vitro fertilization, and placement of embryos into the carrier (generally the woman ultimately to be deemed the "parent" of the child to be born), and, hence, the contract should establish who will ultimately be deemed to be the parents of the child.
Establish Procedures to be Undertaken
Egg donation involves a course of medical and pharmaceutical treatment, which generally induces ovulation. The invasive procedure of physically removing eggs from a donor is required, and diagnostic tests (such as ultrasound examinations)assist the medical practitioners in timely retrieving the eggs.
There are risks of the medical procedures to be undertaken, and good practice would dictate that the contract reveal the risks of the procedures to be undertaken.
Certain diseases or conditions may be known to exist in the donor's family, or may be found within certain populations or ethnic groupings. These conditions should be divulged and the risks assumed by the recipient couple.
Relinquishment of Donor's Possible Rights
In the non-surrogacy traditional context, genetic ties to a child to be born are specifically recognized. The genetic mother and father of a child generally have parental rights in relation to the child. To avoid responsibility for rearing the child, a relinquishment is desirable.
This relinquishment is akin to traditional forms of sperm donation where the parent chooses not to be responsible for, nor have any parental rights to, the rearing of any child to be born as a result of the donation. While the technology of egg (oocyte) retrieval is far more technologically advanced than sperm donation, the justification for relinquishment of rights and obligation is quite similar to sperm donation.
In many states, neither the statutes nor case law have resolved the issue of egg donation, and, hence, it is appropriate for the egg donor to contractually waive any such rights.
Additionally, if the donor is married, it would be wisest to disclaim any paternity on the part of the donor's husband.
Embryos may be implanted into the recipient who will carry the embryo to term, or they may be cryopreserved (or frozen for later use). Numerous eggs are generally retrieved during the egg donation process. The surplus is often cryopreserved in the event that the carrier/recipient does not immediately become pregnant in the first cycle of treatment and,hence, additional embryos are available for subsequent cycles. Some embryos may remain, and the method of disposal or alternate use should be addressed.
Costs are associated with continued preservation of the embryos, the infertility clinic or other holder/preserver of the embryos has an obvious expectation in being compensated for the length of time which the embryos are cryopreserved.
Availability for Use by the Donating Couple
The cryopreserved embryos may be available for use by the donating couple (or by the genetic father and the recipient mother in a donated context) in subsequent cycles. Divorce or death of either or both of the "intended" parents should be addressed in the agreement.
Informed Consent/Disclosure Issues
The likelihood of a successful pregnancy, and the procedures to be utilized should be disclosed in the agreement.
Period of Cryopreservation
The infertility clinic/cryopreservation storer may hold the embryos for a fixed period of time, after which arrangements should be made for disposal or for an extended period of storage. Address changes should be conveyed to the cryopreservation storer.
Methods of Disposal
There are three principal methods of disposal of embryos which are not implanted into the host carrier. These are:
Embryos may be donated to others who desire to parent children. Generally separate consent is preferred for donation, as the involved parties may wish to screen each other.
Cell Culture and Degeneration
Thawed embryos usually degenerate in less than a week and continued growth is presently impossible without placement into a uterus.
Client preferences and ethical concerns should be explored in depth for this possibility.
Surrogacy is an option which medical technology now makes available, yet the laws which govern the building of families have generally not kept pace. As a consequence, most states have not specifically addressed these issues, and if they have, have done so in a limited context.
Competent legal counsel should be sought before any attempts at building a family through surrogacy are undertaken.
These observations are by no means exhaustive, and vary considerably from state to state-- some of which ban surrogacy in its entirety. As a caution, childlessness could be preferable to a poorly conceived and implemented surrogacy arrangement. It is hoped that these observations may help infertile couples or surrogates initially weigh some of the considerations involved in surrogacy.
Mark A. Johnson (P.C.) 136 North Fairground Street Marietta, GA 30060
Mark Johnson practices in the Metro Atlanta, Georgia area. He represented the parents in the first gestational surrogacy (1991), the first artificial insemination surrogacy (1992), and the first donor surrogacy (1999) in the state of Georgia. His services include drafting and analysis of egg donation, embryo donation, surrogacy, and cryopreservation contracts, as well as representation in required court proceedings throughout Georgia. Cases have addressed multi-state and international issues of location of surrogates, infertile couples, and infertility clinics in sister states.
He has testified before the Georgia Senate on proposed surrogacy legislation and spoken at conferences on third party reproductive legal issues, including The Family Law Institute of the Georgia Bar (1999). He delivered a paper at the annual conference of the American Society of Reproductive Medicine (ASRM) in San Diego in 2000 on Informed Consent and Third Party Reproductive Issues and in Philadelphia in 2004, on Managing Legal Risk in the Assisted Reproductive Technologies Environment. He addressed the annual Georgia Superior Court Judges conclave in St. Simons Island on Assisted Reproductive Technology (A.R.T.) and Surrogacy--A Perspective for the Georgia Jurist (2006).
The holder of law degrees from both Emory University and the University of Georgia, Mark Johnson is also a Phi Beta Kappa graduate of the University of North Carolina at Chapel Hill. He has served on the Hospital Authority of Cobb County, Georgia.