Surrogacy arrangements should never face the kind of dispute that arose in this recent California case. This is an example of surrogacy gone wrong. Fortunately, with the right professional guidance, this should never happen. Unfortunately, it happened in this case and may cause unwarranted restrictions to be imposed on other intended parents and surrogates who are pursuing surrogacy responsibly to build a family.
This is a case where a California surrogate entered into a surrogacy contract with a single intended father from Georgia. Prior to signing a surrogacy contract, it is best practice in the U.S. for the professionals who facilitate the match to require the parties to discuss all expectations that relate to the surrogacy. This includes who has the right to decide whether to terminate or selectively reduce a pregnancy in certain circumstances. It is unknown whether this discussion took place here, but if it did not, this is the first red flag that paved the way for this dispute. When these discussions happen and expectations are clear, these disputes are avoided.
The purpose of a surrogacy contract is to clearly spell out each person’s rights and responsibilities. The surrogate in this case alleged she only briefly reviewed the contract she signed. Every person who voluntarily signs a contract in the U.S. is assumed to have read and understood its terms. If the surrogate did not fully read the contract before signing it and was not strongly encouraged to review the contract with an attorney, these are the second and third red flags. Again, when best practices are followed, a surrogate is highly encouraged (if not required) to review the contract with an attorney to ensure her best interests are protected and she understands and agrees to all contract terms.
In this case, the contract stated that the surrogate was giving the right to make pregnancy termination and selective reduction decisions to the intended father. When she became pregnant with a triplet pregnancy, the man was counseled by medical professionals about the risks of a triplet pregnancy and considered his own financial ability to raise triplets as a single father. He then requested the surrogate undergo a selective reduction of the pregnancy to twins, and she became uncomfortable and refused.
Requesting a selective reduction was the intended father’s contractual right, but this situation should never have come down to a “contractual right.” Relationships in a surrogacy are built on clear expectations and trust. The parties should have discussed and agreed who had the right to make this very specific decision prior to even signing a contract together. Signing the contract then affirms this prior agreement. If this discussion did happen, this is a case of the surrogate simply refusing to follow through with a commitment she made which would be a whole separate issue that warrants its own thoughtful consideration. Regardless, it’s incredibly disheartening and tragic when a relationship that originates from a place of hope and collaboration to build a family ends this way.
Current California law gives no parental rights to gestational surrogates. It upholds the intent of the parties, as reflected in the contract they signed. The surrogate is currently challenging this law in federal court, and while this challenge was pending, the children were born. The surrogate is currently litigating the custody of all three children.
Either way the federal court decides in this case, it will have an important impact on surrogacy in the U.S. Regardless of its decision, the outcome of any future surrogacy dispute will not be 100% certain. It is therefore imperative to take the time to talk to an experienced attorney before entering into a surrogacy agreement. Your attorney will be able to ensure that not only does your surrogacy contract express all of your wishes concerning the arrangement but that you also have all of the conversations to confirm you are all truly on the same page regarding all of these critical aspects of the match.