Grayce P. Storey
It is advantageous to be well informed of your rights before deciding to become a surrogate. Therefore, seeking legal counsel is a necessity. The lawyer will assist the surrogate in defining her right, prior to signing any document. It is important for the surrogate to be knowledgeable of her rights as well as the rights of the infertile couple. Once the contract is agreed upon and signed, a lot of the surrogate’s privacy is done away with. The infertile mother is privileged to accompany the surrogate to her medical appointments and be present when certain examinations are conducted.
In case of a married surrogate the spouse is a necessary party and many states presume him to be the genetic father. If the spouse is not in full agreement a contested legal proceeding may ensue.
In the traditional scenario of an unmarried surrogate with a semi-permanent significant other, some states may allow him the rights of a common law husband and he is at liberty to contest the legal proceedings. In either case the surrogate’s spouse or significant other would have to agree to sexual abstinence during the duration of fertilization or embryo transfer. These men are also subject to infectious disease testing. Diseases could be problematic during pregnancy or delivery.
When it comes to compensation to the surrogate, this issue comes under close scrutiny. The surrogate is usually paid $10,000.00 for her services upon completion of her contract. If the contract is not fulfilled she gets nothing (if she backs out). If the pregnancy results in a miscarriage, the surrogate receives partial payment. If for any reason renumeration is out of order, it is looked upon as baby selling (reproductive prostitution, baby trade, selling body and parts, prostitution, renting uterus) by the pregnant woman. The law frowns upon baby selling and in many states it is classified as a felony and punishable by heavy fines and many years in prison.
In the adoption procedure the amount of money exchanged is disclosed along with purposes it is intended to be used for. In an informal adoption procedure the amount that is allowed are restricted to the reimbursement of medical fees, cost of living and legal fees. Adoption agencies are flexible in allowing reimbursement expenses. Wages lost due to illness may not be allowed. All compensation issues must be reported.
Some issues arising out of gestational compensation are:
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- The pregnancy was deliberate and consciously arranged (after being advised by lawyer)
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- Legal matters were agreed upon by all parties (as advised by lawyer)
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- Surrogate has no genetic ties
In the state where the child is to be born (if the surrogate just happens to be passing through) has a sufficient connection and has to issue the birth certificate. It is also a legal matter as to whose names are listed on the birth certificate.
It is a requirement of some states that a contract be drawn up among the parties involved in birthing arrangement. All points in the contract should be carefully and fully explored. Parties that should be present are:
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- The surrogate (spouse/significant other)
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- The infertile couple
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- Legal counsel
In order to avoid disputes, most infertility clinics require a contract. Legal counsel is recommended in order that all involved, to ensure that local laws are kept in compliance.
A possible checklist for the surrogate and the intending couple to explore with their attorneys are:
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a) The infertile couple (intrusting their child’s care and nurturing to another and surrendering of child)
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b) Surrogate (forfeit her privacy) i.e. Roe vs. Wade issue…the U.S. Supreme Court Fundamental Rights of Privacy. The issue includes a woman’s ability to control her reproductive freedom hence her pregnancy
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c) Surrogate’s spouse or significant other must agree to sexual abstinence at certain times; must submit to medical examination
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d) Infertility physician – if insurance is not assessable the infertile couple will assume all costs
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e) Psychiatrist/Psychologist/Counselor – assists in surrendering the child to the infertile couple and counseling
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f) Birthing hospital – provide birth certificate information
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g) If a contract is not required, they are certainly essential to protect all parties involved in keeping their transactions legal
The surrogate must at no time place the fetus at risk. Behaviors that may lead to inappropriate risk are: taking non-prescription drugs, contraband drug usage, smoking of any type (a word of caution is also to avoid the company of smokers), and alcohol consumption.
It is left up to the laws of a particular state to determine the mother or father of the child prior to birth. All parties must agree to provide affidavits, a court appearance, and testimony to effectuate the designated mother and father of the unborn fetus. The courts will honor contracts and agreements between surrogate and intending parents, unless circumstances significantly change that will jeopardize the best interest of the child. The gestational bond is not an issue. The question is asked, how much bonding actually takes place? The decision is always for the best interest of the child. This may not always be the most applauded solution; nevertheless it is what it always boils down to.
Frozen embryos are costly and should be addressed in the last will and testament of infertile couple. Methods of disposal can be controversial and should be addressed. The methods commonly used are: donate to unknown couple (separate consent is preferred and the parties may wish to screen each other), disposal (thawed embryos degenerate and cease to grow), and tissue donation for medical research. The later is truly an ethical issue that should be explored. The rights to life activists are very vocal on this ethical issue regarding “pre-embryo” embryo. The board of trustees of the American Medical Association (AMA) recommends that the gamete providers (sperm and egg) be the primary authority over the frozen embryos.