Written by Connie Shapiro, PhD
Surrogacy has been in the news for a number of years. I well remember how early media coverage focused on heart-wrenching problems, such as a surrogate mother who chose to retain custody of the baby rather than to honor the agreement she had with prospective parents. Gradually I have seen the media focus becoming more positive, with recent stories of Sarah Jessica Parker and Matthew Broderick welcoming their second child who was born to a gestational surrogate. Given the desperation felt by many infertile couples, I believe surrogacy has become highly appealing to couples who can afford it. And with the demand increasing, a number of fertility physicians have been responsive to couples’ efforts to pursue this option. However, the legal issues involved in surrogacy have not been clarified to keep pace with the increasing demand by hopeful couples for medical assistance in helping a surrogate conceive. I believe this “legal lag” needs to get just as much media attention as the medical successes in helping infertile people become parents. The following article is an excellent step in that direction, encouraging prospective parents to do careful homework on how they can protect themselves from the legal pitfalls that they could encounter.
A front page December 13 article in the New York Times highlighted the issues potential parents face when turning to surrogacy as a means to bring a child into their lives. The article emphasized what so many infertile people know from experience, namely that there is no legal consistency in how different states handle surrogacy. To illustrate the inconsistency, the article states some real-life examples. On one end of the spectrum, there is California, where courts have upheld the validity of surrogacy contracts. On the other end is Michigan, which holds that surrogacy is contrary to public policy and that surrogacy agreements are unenforceable. In between are about 10 states that allow for surrogacy but preserve restrictions, with the majority of states being “silent” on surrogacy, effectively creating legal uncertainty about how intended parents can proceed when their initial plans with a surrogate are challenged. The article did go on to say that fewer problems occur in those circumstances when prospective parents have a genetic link to the offspring, but also pointed out that potential trouble spots can occur in several situations including: when surrogacy arrangements are handled by for-profit agencies, when a woman has not given birth to her own child before becoming a surrogate, when the prospective parents have not been psychologically screened and when there has been no preapproval by a court in a process that would include a home study. For the approximately 750 babies born each year in the U.S. through gestational surrogacy, the legal limbo has potential ramifications for all the players in the effort to provide a healthy and loving home for these babies.
So, what lessons can we learn from this, given that legal protections will be slow to develop and, even when they do, different states will offer different enforcements? First, it is clearly important to choose a nonprofit agency that utilizes protective guidelines. Second, prospective parents should familiarize themselves with existing guidelines developed by organizations such as the American Bar Association, the American College of Obstetricians and Gynecologists and the Society for Assisted Reproductive Technology. Third, it is important to recognize, as the New York Times article emphasizes, that surrogacy is controlled mostly by fertility physicians who stand to profit financially from the procedures they carry out. Also, many of the 100 agencies in the U.S. that coordinate surrogacy arrangements do not adhere to guidelines that would protect prospective parents in case of a dispute. Given that a successful surrogacy can cost between $80,000 and $120,000, prospective parents are in a position to lose not only that money, but also the hope for a newborn to carry home.
What I have taken from this information is that prospective parents need to do careful homework and proceed with caution before choosing surrogacy as a path to parenthood. As attractive as surrogacy may be at first glance, I believe the bottom line is that prospective parents must be vigilant and legally careful in negotiating this particular path to parenthood — both to protect their rights and the well being of potential children.
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