Who’s In Charge Of This Pregnancy, Anyway?
By Steven H. Snyder, Esq.
An expectant mother is typically very eager for any reasonable knowledge and advice about the best way to manage her pregnancy for the ultimate health and well-being of her expected child. Typical resources for this type of information include the mother’s obstetrician, topical books, news articles, and programs, and advice from friends and family. From this patchwork information system, the expectant mother devises her foolproof strategy to gestate and deliver the healthiest, most beautiful baby possible. She will avoid alcohol, cigarettes, harmful drugs, strenuous physical activity late in the pregnancy, mercury-laden fish, and cat litter, among other things. She monitors herself, and this is all that is necessary because she, of course, has the greatest interest in the success of her efforts and the health of her newborn. When the child is about to be born, the expectant mother is calm because she has no doubt that she has done everything possible to ensure her child’s well-being.
Enter third-party reproduction through the use of a surrogate mother. Now, the expectant intended mother has the strongest interest in the ultimate outcome of the pregnancy and the health of the child (for whom she has waited for years), but the surrogate has the only direct control over what external factors and substances actually affect the pregnancy and the child. The surrogate also has sole control over whether and under what circumstances the pregnancy will proceed to full term, how and where the baby will be delivered, and who will have access to the delivery room and the baby in the hospital. The intended mother’s frustration at not having control over the surrogate’s behavior when the intended mother believes that the surrogate’s behavior may be harming the child is the single most likely source of potential conflict between the parties to a surrogacy agreement during the pregnancy. The negotiation and enforcement of the agreements between the intended parents and the surrogate regarding these very sensitive and important issues is at the heart of any surrogacy agreement. Let’s address the most common issues one at a time.
First, the parties should agree as to who will select the surrogate’s obstetrician. This doctor will most likely become the “Attending Physician” as defined in the agreement. He will be the doctor who will ultimately determine the application and outcome of numerous issues that directly or indirectly affect the pregnancy under the agreement. For example, the Attending Physician will typically determine whether certain predictive tests are necessary during the pregnancy (e.g.-amniocentesis), whether the fetus or mother are at risk enough to recommend early termination of the pregnancy (which may entitle the surrogate to partial, prorated compensation), and whether bed rest is required to protect the pregnancy (thereby possibly triggering lost wage reimbursement provisions). If the intended parents select an obstetrician with whom they have a relationship, these issues may be determined in their favor, and they have more control over the pregnancy; if the surrogate uses her usual obstetrician with whom she has a preexisting relationship, these issues may be determined more in her favor, and she will have greater control. In either event, a capable physician should be selected, and both parties have a vested interest in who that will be.
Second, the parties should discuss and agree on what behavioral limitations the surrogate is able and willing to accept in order to protect the pregnancy and the health of the child. Does she usually smoke, and will she be physically able to quit during the pregnancy even if she says she will? If she is a drug user, has she honestly disclosed this fact, and will, or can, she stop during the pregnancy? If she is a moderate drinker, will she agree not to drink alcohol in any social situation even where the child she is carrying is not intended to be hers? If the surrogate is used to starting every day with six cups of strong coffee, will she agree to abstain from caffeine? If the surrogate coaches lacrosse and is used to being on the field and playing the game with her athletes while she coaches them, even during the third trimester of her own previous successful pregnancies, is she willing to restrict this behavior just because this is your child and you disapprove? Each of these issues has come into dispute in real situations, and all possible restrictions that the intended parents consider prudent for the gestation of their child should be clearly discussed, negotiated, and resolved before the pregnancy ever starts.
Finally, the parties should openly and honestly discuss their expectations about the management of the pregnancy in light of the health (or lack thereof) of the fetus, the number of fetuses in gestation, and the respective values of the intended parents and the surrogate. If a forty-plus-year-old intended mother uses her own egg to create the embryos implanted into the surrogate, the possibility of Down’s Syndrome or other more serious conditions is greater. Some intended parents will want to complete the gestation and receive the child no matter what, but others may prefer to end the pregnancy under certain circumstances, depending on the quality of life that they (and the Attending Physician) believe the child will have. When IVF procedures are used and multiple embryos are implanted, the likelihood of a multiple gestation is higher, and issues of selective reduction may become relevant. If a small, petite surrogate becomes pregnant with triplets and is unlikely to be able to carry any of the fetuses long enough for any of them to have a reasonable chance of survival after birth, will she or the intended parents want to selectively reduce the number of fetuses to ensure the birth of at least one or two healthy children? If the surrogate simply changes her mind about completing the pregnancy, can she unilaterally end it? In order to avoid very painful disagreements in these areas during the pregnancy, these issues must all be discussed and resolved in advance, and it is very important that the intended parents identify and work with a surrogate with similar values regarding these issues.
Even if all of the foregoing issues are discussed and complete agreement is reached between the parties, how can the intended parents be sure that the surrogate is doing what she promised to do? What happens if she doesn’t?
With regard to the medical testing and management of the pregnancy, the intended parents may reserve the right to select the surrogate’s obstetrician, which may give them more input about these issues. The intended parents will certainly want the surrogate to sign a release that gives them access to all of her medical records and test results during the pregnancy and the right to talk to her obstetrician, whoever selected her or him. In this way, the intended parents can immediately know whether any or all of the agreed-upon procedures have been followed. If the surrogate fails to do everything required by the agreement, the intended parents can bring an expedited action in court to enforce the agreement and force the surrogate to comply (i.e.-lawsuit for specific enforcement), or they can treat it as a breach of the agreement and use whatever remedies the agreement gives them for breach of the specific provisions (i.e.-cancellation, withholding of compensation, etc.) However, a legal action for specific performance may take too long and cost too much, and withholding the surrogate’s payments may be of little relief if failure to undergo certain diagnostic tests threatens the pregnancy or the health of the fetus.
As for the surrogate’s abstinence from alcohol, nicotine, caffeine, etc., the intended parents can require blood testing to check for the presence of these, or other, forbidden substances in the surrogate’s bloodstream, but only if this right is specifically reserved in the agreement. Then, with the above-mentioned medical information release form, they can receive the results and react accordingly. Short of constant personal monitoring of the surrogate, it is probably impossible to enforce her abstinence; however, her breach of these provisions can still operate to reduce or eliminate her compensation, and this may be enough leverage to obtain her compliance.
If the surrogate terminates a viable pregnancy or refuses to terminate a pregnancy at the intended parents’ request, there is little, if anything, that the intended parents can do to change her decision under the present constitutional precedent. The United States Supreme Court decision in Roe v. Wade, 410 U.S.113 (1973) gives the surrogate the sole right to control her pregnancy as set forth in that case. Thus, if she wants to terminate the pregnancy for any reason or no reason at all, she can. Moreover, if the intended parents want her to terminate the pregnancy or selectively reduce the number of fetuses in order to protect the remaining fetuses, she can refuse to do so. Nevertheless, certain remedies can also be included in the agreement, ranging from (1) disallowance of compensation to (2) modification of the parties’ custodial rights to and obligations for the child. Such remedies may, again, motivate the surrogate to comply with the agreement as negotiated.
As in all discussions in this complex and emotionally-charged area, an ounce of prevention is worth a pound of cure. There is nothing that minimizes or prevents disputes and disagreements between the parties over these issues more than careful screening and matching of the participants, thorough discussion and negotiation prior to the pregnancy of all the issues that could arise, and the drafting of a detailed agreement that accurately reflects the parties’ intent and provides for reasonable monitoring and remedies in the event of any breach.
(This article is not intended as legal advice and should not be relied upon as such. Each family and agreement is unique, so you should hire a competent attorney to advise you specifically about your particular case.)
Mr. Snyder is an attorney experienced in assisted reproduction and surrogacy law. If you have any questions or issues that you would like him to generally address in future issues, you may contact him at:
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