Mistaking Legal Recourse for Evidence-Based Medical Practices in Surrogacy
Paying a surrogate to carry a fetus shoehorns a fourth, and fifth, party into the already tight therapeutic triangle formed by the biological mom, fetus, and physician.
Gestational surrogacy is stressful business.
Paying a surrogate to carry a fetus shoehorns a fourth, and fifth, party into the already-tight therapeutic triangle formed by the biological mom, fetus, and physician, and it's not always a snug fit. The thorny deontological questions that obstetricians wrestle with in a traditional pregnancy (eg, how, exactly, should the needs of mom and the fetus be weighed against each other?) are made messier by the wishes and anxieties of another set of parents, whom everyone agrees has a vested interested in the baby's health, and who paid a hefty sum for the privilege. Three's company, but 5 is definitely a crowd.
In an article published in the Law and Society Review, Hillary L. Berk, JD, PhD, the Legal Studies Postdoctoral Fellow at the University of California, Berkeley, shared a quote from a lawyer discussing 1 of her surrogacy clients: "[The surrogate mother had] to be available 24/7. If she didn't return a phone call within an hour, he freaked out. Towards the last trimester, [she] was so at her wit's end. And he's one of those where he's very wealthy, so it's kind of like, 'I'll just pay you more money if you shut up about it.' And it's like, okay, at a certain point,that just doesn't work anymore."1 Forget about happiness, money can't even buy a stress-free surrogacy experience.
Not content to remain on the sidelines, intended parents routinely try to influence the proceedings by insisting on behavioral restrictions in surrogacy agreements. The terms can range from mild (monthly visits with the obstetrician/gynecologist) to draconian (24/7, nanny cam-style surveillance), but either way they are almost always the product of a lopsided negotiation — if there even was a negotiation. After all, only 1 of the parties has tens of thousands of dollars to spend on surrogacy fees and fancy lawyers. In any event, even if the terms weren't reached under duress, they're still necessarily an imposition on the surrogate. At the very least, they're another set of hurdles to be cleared during mom's 9-month marathon. The extra stress might as well be written directly into the contract.
The trouble with this reality is that pregnancy is the worst time for additional stress. Despite being a healthy woman specifically selected to carry a fetus, surrogates suffer astronomical rates of placental abruption, a condition that is inextricably linked to maternal hypertension; by some estimates, the incidence of abruption is close to 5 times higher among surrogates than among the general population. 2,3 The link hasn't been thoroughly investigated yet, but even the lawyers wouldn't argue that hyperdetailed surrogacy contracts are lowering mom's blood pressure.
Beyond that, oftentimes surrogacy contracts don't remotely resemble evidence-based best practices for pregnancy. For 1 thing, if constant surveillance truly produced healthier newborns, obstetricians would behave a lot more like private investigators. Even the behavioral restrictions can have flimsy medical justification: Ms Berk, for instance, has uncovered cases where the surrogate was contractually barred from getting a pedicure.1 It's not just that pedicures and the like land pretty far afield from the industry-standard prohibitions for pregnant women, although that's true too. It's that these clauses try to police behavior so minuscule and quotidian that even if they did pose some minor danger to the fetus, we'd never be able to prove it.
There are 2 different errors being committed here. The first is that the intended parents don't actually have all that much influence over the outcome of the pregnancy, so they're overcompensating with an iron grip on the parts of the process that they can control. There's fallacy baked into their thinking, to be sure, but it's largely of the immutably human variety, and there's not much to be done about that.
The more profound and, happily, correctable error is that surrogacy agreements are mistaking a medical problem for a legal problem. Spoiler alert: the intended parents don't really care whether their surrogate gets a pedicure, or exercises regularly, or anything else. Those requirements are just proxies for the 1 outcome that truly matters: that the baby comes out healthy. But proxies are the only strings that the intended parents have to pull, and they already have a pricey attorney on retainer, so they direct him or her to extract an absurd list of concessions from the surrogate. The lawyer, meanwhile, never even reaches the question of whether the proxy restrictions actually line up with improved outcomes for the fetus and surrogate -- that's above his or her pay grade, and besides, if all you have is a hammer, even surrogacy arrangement looks like a nail. In the end, none of the stakeholders — surrogate, intended parents, fetus — come away happier or healthier.
Ironically, the solution might lie in a process that attorneys are already familiar with. Instead of committing to a full-blown jurisprudential process, emotionally invested litigants will often agree to have their dispute decided by binding arbitration. This is especially common in divorce proceedings, but it's increasingly being used in other cases as well. The process is simple: the parties meet in a conference room and tell their story to the arbitrator, usually a retired judge, who then makes a final decision. Whatever the arbitrator says, goes. It's a clever way to come to a reasonable conclusion while avoiding the expense, wasted time, and hurt feelings of court.
Surrogacy cases need a physician-arbitrator. Here's how it might work: the surrogate and intendeds would agree to a physician-arbitrator from a licensing board-approved list. Before the surrogacy contract is signed, they'd all gather in a conference room. The arbitrator would be free to ask the parties any question that might help clarify their goals, fears, and motivations. Then, based on those answers and a review of the surrogate's medical file, the arbitrator would write up a list of behavioral restrictions and monitoring arrangements for the pregnancy, which would then have to be inserted in any subsequent surrogacy agreement. That's it. Whatever the arbitrator says, goes.
Balancing maternal and fetal health is a medical problem, which means it's best served by a medical solution. Legal solutions are, in the end, futile.
"I think with intended parents, there's certainly a vulnerability and a need to control that comes out because...someone else is basically physically carrying, literally, their child, and is away from them," a surrogacy lawyer told Ms Berk. "And that is a vulnerable situation to be in. And I think that's where crazy...restrictions come in. That's sort of...an expression of their need to control the situation. But the reality is, you're never going to be able to control this person's every move."
Intended parents shouldn't even try.
1. Berk HL. The legalization of emotion: managing risk by managing feelings in contracts for surrogate labor. Law Soc Rev. 2015;49(1):143-177.
2. Söderström-Anttila V, Wennerholm U-B, Loft A, et al. Surrogacy: outcomes for surrogate mothers, children and the resulting families — a systematic review. Hum Reprod Update. 2016;22(2):260-276.
3. Cunningham FG, Leveno KJ, Bloon SL, et al. Williams Obstetrics. 24th ed. New York: McGraw-Hill Education/Medical; 2014.