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Points to Consider on the Subject of Surrogacy
By: John J. Weltman, Attorney at Law
Looking around the country, it is my understanding that surrogacy remains one of the more secure means of arranging for and obtaining and maintaining custody of children for infertile couples. One statistic that I have heard repeated is that of the 5,000 legally contracted for surrogate births in the past 15 years, only about 12 have been challenged and I am only aware of two instances in which the courts have granted partial custody to the surrogate mother -- the Baby M case and the Michetta case in California. California, in fact, has upheld the validity of surrogacy contracts in the Johnson case. However, it granted the surrogate partial custody in the Michetta case, because the surrogate asserted that she had been defrauded into the arrangement by the couple since they had not advised her that they were having severe marital problems and ended up divorcing before the child was born.Based on this, honesty with the surrogate is critical. To make sure the surrogate understands the couple's situation, I insist upon an exchange of information between the couple and the surrogate and make sure both parties are represented by lawyers so that they fully understand the contractual obligations into which they are entering.
The one lesson to be learned from the Baby M case is to make sure that the surrogate is carefully screened by a psychotherapist before acceptance into the program. Apparently, Mary Beth Whitehead, Baby M's surrogate mother had been rejected by three psychotherapists before going to work for the couple. Accordingly, I insist that all surrogates pass psychological testing and evaluation before being accepted by the couple.
In addition, I am only aware of two cases in which a couple has sued a surrogate parenting agency for malpractice. One case, in Michigan, asserted that the agency should have tested the inseminating father for cytomaglovirus, because its failure to so test led the surrogate mother to accept his sperm and later, after she ceased working with him and became pregnant with a child through her husband, that child was born with cytomaglovirus. While the surrogate parenting agency asserted that it had relied on doctors to determine which tests needed to be performed, it was still held on the hook by the court due to its selection of those doctors and its responsibilities as a principal for the actions of its agents.
In the other case against a surrogate parenting agency, which I handled as legal counsel for the agency, a couple sued a surrogate parenting agency in California for its failure to stop a surrogate from sleeping with her boyfriend and, thereby, becoming pregnant with her boyfriend's child during the insemination process. The couple went on for four months paying the surrogate for her services during the course of her pregnancy and did not learn until the paternity tests came back after the amniocentesis that the child was not theirs. The jury found no liability on the part of the surrogate parenting agency. Undoubtedly, one of the key issues in the jury's mind was that the surrogate parenting agency could not control the actions of every surrogate.
While this case found for the surrogate parenting agency, it instructs all potential parents to make sure that surrogates are adequately screened, that surrogates have their own attorneys to explain to them thoroughly what the celibacy term of the agreement means, and that paternity tests be done early so that potential parents do not risk more than a few months of payments to a surrogate before they know, for certain, whether a surrogate is pregnant with their child.
The key to an intelligent entry into a surrogacy arrangement requires one to understand all of the potential negative outcomes of a surrogacy arrangement and to provide for how to handle them in the original agreement. In that fashion, one can avoid the rare headaches that can arise with surrogacy. With this focus, parents have a much higher likelihood of a successful surrogacy arrangement.
October 1996
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