Email: surrogacydotcom@gmail.com Disclaimer
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.
A. 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.
1. Infertile Couple
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.
2. Surrogate
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.
3. 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.
4. Infertility Physician
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.
5. Surrogate's Obstetrician
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.
6. Psychiatrist/Psychologist/Counselor
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.
7. Birthing Hospital
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.
8. Governmental Authorities
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.
B. Preimplantation/Preinsemination Testing
Numerous procedures must occur prior to impregnating the surrogate. They include the following:
1. Physiological Testing
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.
2. Psychiatric/Psychological Evaluation
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.
C. Implantation/Artificial Insemination
These procedures are obviously to be performed by a licensed medical professional, i.e., the infertility physician/clinic. Procedures include:
1. 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.
2. 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.
3. 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).
4. 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.
5. Sexual Abstention
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.
D. Pregnancy
A panoply of issues emerges upon the surrogate's becoming pregnant. They include:
1. Agreement to Carry the Child or Children Until Delivery
a) 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:
i. Genetic or developmental testing, such as for amniocentesis and chorionic villus.
ii. Genetic testing to substantiate actual parentage.
iii. Protocols concerning risk assessment to the surrogate and weight to be afforded the recommendations of the obstetrician.
iv. Miscarriage events.
v. Expense reimbursement in accord with the various scenarios.
vi. 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.
b) Medical Emergencies
Protocols must be established that surrogate shall comply with the directives of obstetrician, except in medical emergencies.
c) Abstinence/Abstention
Surrogate shall agree she shall not place the fetus at risk during pregnancy and shall refrain from behavior which bears inappropriate risk. These include:
i. Smoking;
ii. Alcoholic consumption;
iii. Illegal drug consumption;
iv. Non-prescription/prescription medication, not authorized by the obstetrician.
d) 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.
e) Cesarean Delivery
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.
f) 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:
i. Birth certificate designation of mother and father.
ii. Determination of parental rights and who shall constitute mother and father of the child to be born.
iii. Release of possible parental liability and responsibility of the surrogate and surrogate's husband.
iv. 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).
v. 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.
E. Delivery/Custody/Post-partum Care
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.
1. 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.
2. 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.
3. 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.
4. 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.
5. Naming of The Child
Infertile couple shall name the child or children to be born, and surrogate will not attempt to name the child.
6. 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.
7. Cryopreservation
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;
b) Disposal;
c) Tissue donation;
d) Medical research.
8. 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.
9. 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.
10. 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.
F. Confidentiality
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.
1. Disclosure of the surrogacy relationship should be limited to the individuals necessary for its realization.
2. Issues such as publicity, authorship of books, or appearance on media should also be contained in the agreement.
3. The filing of pleadings and conduct of hearings or required government filings should be coordinated so as to assure maximum confidentiality.
G. Informed Consent
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.
1. 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.
2. 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.
H. Compassionate Surrogacy
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:
1. 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.
2. Child Abandonment
Failure to support one's genetic child "either within or outside of lawful wedlock", often constitutes the criminal offense of child abandonment.
3. 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.
4. 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.
5. 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.
e) Compensation
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.
I. 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.
J. Customary Contract Provisions
In most contracts, it is desirable to have certain customary provisions. These include:
1. 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.
2. Notice Provisions
The formal designation of an address where legal notices or claims under the contract should be sent is desirable.
3. 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.
4. Non-assignability Provision
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.
5. Severability Provision
If a portion of the contract is invalid for whatever reason, then the balance of the contract does not fail for that reason.
6. 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.
7. Disclaimer
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
Author: Mark A. Johnson
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Marietta, GA
The information contained in the website may not be published, broadcast, rewritten or otherwise distributed without the prior written authority of The American Surrogacy Center, Inc. If you would like to include this information on your website, you may link to the page directly on our site.
Guest commentary and representations by others do not necessarily reflect the opinions of the principals of TASC, and should furthermore be independently verified.