By Gina Barton of the Journal Sentinel
August 9, 2012
In 2001, a British woman serving as a surrogate for a California couple found out she was carrying twins. That was a problem: The parents-to-be wanted only one baby.
They had discussed aborting one fetus, but the surrogate refused to do so when they asked at 13 weeks. After lawsuits and countersuits, the twin girls were placed for adoption, and the California couple were forced to pay the surrogate’s medical bills.
Questions that may seem solely moral or ethical also become legal issues when surrogacy is involved. While contracts help, they aren’t always enforceable. And each new conflict carries the potential to change the course of a child’s life.
“You get different judges with different philosophies about reproductive health,” said Thomas J. Walsh, a De Pere attorney who has represented both surrogates and infertile couples. “You may run into problems.”
The best way to prevent conflicts, experts agree, is to screen potential surrogates carefully and match them with like-minded couples. Drawing up a contract should be more than a legal exercise – it should be an opportunity for all parties to discuss the issues that may arise and come to an agreement.
“The most important thing is that there be a decision about things ahead of time – before anybody is pregnant,” said Lynn Bodi, an attorney and co-owner of The Surrogacy Center in Madison. “We want to make sure there’s a meeting of the minds about what is going to happen.”
Problems most often arise when couples and surrogates connect online – as the British woman and the California couple did – and don’t discuss potential problems with a psychologist or social worker.
Her agency requires mental health evaluations for all parties involved. Both the surrogate and her husband or partner must undergo criminal background checks and financial evaluations. The surrogate also must be raising a child she has given birth to, so she will know what to expect from pregnancy. That requirement lessens the likelihood that the surrogate will have second thoughts after the baby is born, Brisman said.
As the California case shows, a contract cannot force a woman to have an abortion. Nor can it prevent her from doing so – even if the fetus is not genetically hers. Theoretically, the couple who plan to parent the baby could sue if a surrogate had an abortion against their will, but their odds of winning are low, said Arthur Caplan, professor of medical ethics and health policy at the University of Pennsylvania.
“They could try to scare her, but you can’t contract away a fundamental right like that,” he said.
A couple also could file a civil suit if the surrogate did something to harm the fetus, such as drink excessively or use illegal drugs. They may be able to recover the payments they made to her, but would still be responsible for raising the child, according to Bodi.
“If the baby is born with defects, it’s still your baby,” she said.
Along the same lines, it’s up to the couple who hired her, not the surrogate, to decide how far doctors should go to save a baby who is seriously injured during the birth process, she said.
More issues could arise if the pregnant woman’s best interests came into conflict with those of the fetus, Caplan said.
“What if she has some sort of mental collapse?” he said. “What are you going to do in terms of making sure the baby is allowed to be born healthy? Are you going to confine her? Can she take medication?”
Surrogacy contracts should address even unlikely possibilities, such as what should happen if the surrogate is rendered brain-dead but could physically sustain the pregnancy on life support, Bodi said.
And in case the parents-to-be both die during the course of the pregnancy, they should name a guardian to care for the child.
“Those babies will be born regardless,” Bodi said. “What you want for the child is to have legal parents and permanence