In Part 1 of this article I provided a brief overview of the history of surrogacy in the United States. In this second and final portion of the article, I delve into the actual language of surrogacy contracts.
Real Surrogacy Contracts
Perhaps the most effective argument against surrogacy agreements is the language of the contracts themselves. Have you ever read a surrogacy contract?
I have. Quite a few, in fact, many drawn up in my state of California. California is one of our country’s most surrogacy-friendly states. A surrogacy-friendly state is one that allows commercial contracts, does not limit payment to a surrogate mother, and ensures that the intended parents will be the legal parents of the child, protecting intended parents from a surrogate mother’s changing her mind and not relinquishing the child once born.
I believe that all surrogacy should be prohibited, not simply regulated. Laws, regulations, and contracts cannot ever protect women and children from all of its many harms. The typical surrogacy contracts that I will analyze below demonstrate clearly that regulations and contracts do not protect women and children. Instead, they facilitate their use as mere commodities—just another collection of products, goods, and services to be exchanged.
What’s in a Typical Surrogacy Contract?
Surrogacy contracts contain a lot of standard legalese. The typical Gestational Surrogacy Agreement opens with the names of the intended parents (or parent) and the name of the surrogate entering into the agreement. Notably, the word “mother” is never used with regard to the surrogate. It is used only if there is an intended mother involved. Indeed, the word “mother” is entirely absent when the agreement is between a single man or a gay couple and a surrogate.
A recitals section is also included, describing the intended parents and the surrogate (and her husband if married), and declaring that the surrogate is fully informed and intends not to assert parental rights or claims to the child. There is typically language declaring that the agreement is not for the purchase of a child nor for the surrogate’s consent to surrender the child for adoption. One contract boldly states that it is not in violation of anything “prohibited under California Penal Code Sections 181 and 273,” which would be baby selling or forced coercion to surrender a child.
A lot of medical and psychological testing and screening are required in these agreements. Sometimes it is only required of the surrogate, to assure she is physically healthy and mentally sound, but at other times the intended parents are required to be screened and tested as well. The payment structure is outlined, along with reimbursable expenses (clothing allowance, gas and mileage reimbursement to and from doctor appointments, lost wages in the event the surrogate has to miss work or stop working due to pregnancy-related complications, etc.). And there is always language establishing maternity and paternity once the child or children are born.
The most troubling aspect of such contracts is usually not the nuts and bolts, but the addition of all the whims and wishes of the intended parents. The intended parents get to direct nearly every detail of the surrogate’s life up to the moment of birth and surrendering the child. This makes the commercial use of the woman’s entire body for the duration of the pregnancy very clear.
Most contracts explicitly control the surrogate’s diet, exercise, living arrangements, travel, and activities. I’ve seen language requiring the surrogate to consume a vegan diet or only eat organic foods. Some intended parents do not permit the surrogate to dye her hair. One contract stipulated that “The Surrogate and her Husband agree that they will neither form, nor attempt to form, a parent-child relationship with any Child the surrogate may bear.” Contracting against maternal-child bonding, as if such a thing is even possible!
The confidentiality of personal health information is so serious that the federal government has instituted strict guidelines (HIPAA) to maintain it. Yet this confidentiality is simply written away in many surrogacy contracts. All of the surrogate’s medical information is available to the intended parents, who are often total strangers. Here is the language from one contract:
The surrogate expressly waives the privilege of confidentiality and hereby directs the release to the Intended Parents, upon their request, of the report and other information obtained as a result of any and all psychological, psychotherapy, or medical evaluations or testing obtained or performed as contemplated by this Agreement. The surrogate agrees that the Intended Parents are privy to psychological information relating to the Surrogate’s mental health and any other pertinent information relating specifically to this surrogacy arrangement.
Another contract states:
The surrogate waives her doctor-patient privilege, as required to perform on this Agreement, and hereby agrees to any release form required to allow the Intended Parents, the Agency, and the Alternative Intended Parents to communicate with all treating or attending medical personnel, and to review relevant medical records pertaining to Surrogate’s pregnancy or health.
Contracts also regulate when the surrogate can engage in sexual activity and with whom. Allow me to quote a lengthy section to demonstrate how complicated this gets:
Surrogate agrees that she will not partake in any sexual/intimate relations with any person, except her Partner (but only if he submits to medical testing as required in section X), while this Agreement is in effect and in particular from her initial medical screening as provided for in Section X up to and through the embryos transfer procedure and during her pregnancy with Intended Parent’s Child unless a future partner is medically screened and approved pursuant to subsection X. Notwithstanding Surrogate’s agreement to abstain from sexual/intimate relations with others, Surrogate further agrees that for a period of three weeks before an attempted transfer of the Intended Parent’s embryo to Surrogate’s uterus and continuing during Surrogate’s pregnancy with Intended Parent’s embryos, to the extent Surrogate or her Partner anticipate any intimate relations with an individual other than each other, and in the case of Surrogate’s Partner, he continues to maintain an intimate relationship with Surrogate, then Surrogate or Surrogate’s Partner shall arrange for any individual with whom they may become or are sexually active, being tested for any venereal and sexually transmitted diseases (including AIDS and the HIV Virus) and hepatitis prior to engaging in sexual intercourse.
Contracts also contain an Abortion/Termination Clause:
Surrogate specifically agrees to terminate prior to eighteen weeks at the election and discretion of the Intended Parents. With the exception of termination based on gender selection, which will not be permitted, the right of the Intended Parents to request termination/abortion is absolute and does not require any explanation or justification to the Surrogate, including but not limited to if any genetic abnormality or defect has been determined such as cerebral palsy or Down syndrome.
Fetal reduction is addressed as well:
The Intended Parents reserve the ultimate and sole legal right to selectively reduce before the completion of twenty (20) weeks of gestation . . . The Intended Parents have the sole right to determine the number of fetuses to selectively reduce taking into consideration the recommendation of the Surrogate’s treating physician . . . The right of the Intended Parents to request a selective reduction is absolute and does not require any explanation or justification to the Surrogate.
As a nurse, I have to confess that when I read this clause on end-of-life decision-making, my blood ran cold:
If the surrogate is in her second or third trimester of pregnancy and in the event that medical life support equipment is required to preserve and maintain the life of the Surrogate and if requested by the Intended Parents, the Surrogate and her husband agree that the Surrogate’s life will be sustained with life support equipment for a period to achieve viability of the fetus taking into account the best interests and well-being of the fetus . . . The Intended Parents will make the decision with regard to how long the life support should be continued prior to the birth of the Child taking into account the obstetrician or perinatologist’s recommendation and the desires of the family of the Surrogate. The Surrogate’s husband, or her next of kin, is solely responsible for determining the time at which life support treatment will be discontinued following the birth of the Child.
These contracts always include language regarding how to deal with a surrogate who does not comply. If the surrogate decides she will not terminate the pregnancy at the demand of the Intended Parents, contracts often state, in this kind of bold, uppercase formatting:
TO THE EXTENT THAT THE SURROGATE CHOOSES TO EXERCISE HER RIGHT TO ABORT, OR NOT ABORT, IN A MANNER INCONSISTENT WITH THE INSTRUCTIONS OF THE INTENDED PARENTS, IT IS UNDERSTOOD THAT SUCH ACTION MAY BE DETERMINED TO CONSTITUTE A BREACH OF THIS AGREEMENT.
What happens when the surrogate is in breach of her agreement?
Surrogate understands and agrees that she will surrender any fees received, any future fees and may be liable for damages resulting from breach of this Agreement. Surrogate understands and agrees that reimbursable costs may include but not be limited to the following list of items: IVF Fees, Agency Fees, Attorney’s Fees, Medications and Travel Expenses. Surrogate also understands that she may be liable for care and costs for a child born, until that child reaches the age of 18, if the child is born due to a breach of the section X, (ABORTION/SELECTIVE REDUCTION/TERMINATION) of this agreement.
I’m often asked, whether these contracts are legal. If they are written and executed in a surrogacy friendly state, they absolutely are legal. But do surrogacy contracts violate aspects of the common good? How can they not? Take your pick—privacy, doctor/patient confidentiality, bodily integrity, medical decision-making power, and more. Surrogacy contracts are written to protect the Intended Parents, not the surrogate mother nor the child.
People often ask me why a woman would sign a contract that surrenders so much of her personal life—her very bodily integrity—to strangers? The short answer is “money.” Financial motives often compel women to become involved in a marketplace that is, frankly, predatory. Surrogacy is presented to potential surrogates as an opportunity to “give the gift of life,” and the risks are minimized. This is exactly why it is illegal to buy and sell organs. We know that if organ donation were to become a commercial marketplace, the need for money combined with the opportunity to help someone in need would drive people to take serious risks with their health. Money undermines the informed consent process. It will always be the people who need money who are selling; the wealthy will be the consumers/buyers.
Reading surrogacy contracts can make you weep, make you angry, and turn your stomach. I hope it will inspire you to demand that surrogacy be prohibited in your state, in the whole of the United States, and, ultimately, in the entire world. The truth is, surrogacy is an international problem in need of an international solution. That solution can only be to prohibit contract pregnancies entirely.
This article originally appeared at http://www.thepublicdiscourse.com/2017/11/20390/
Image by Jan Truter via flickr (CC BY-NC-ND 2.0)
- Jennifer Lahl, MA, BSN, RN, is founder and president of The Center for Bioethics and Culture Network. Lahl couples her 25 years of experience as a pediatric critical care nurse, a hospital administrator, and a senior-level nursing manager with a deep passion to speak for those who have no voice. Lahl’s writings have appeared in various publications including Cambridge University Press, the San Francisco Chronicle, the Dallas Morning News, and the American Journal of Bioethics. As a field expert, she is routinely interviewed on radio and television including ABC, CBS, PBS, and NPR. She is also called upon to speak alongside lawmakers and members of the scientific community, even being invited to speak to members of the European Parliament in Brussels to address issues of egg trafficking; she has three times addressed the United Nations during the Commission on the Status of Women on egg and womb trafficking.