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DOCTORS AND THE SURROGATE MOTHER

How should physicians deal with contractually arranged pregnancies?
Physicians, particularly obstetricians, dealing with surrogate pregnancies have unique legal and practical issues to face when dealing with the contractual obligations of the surrogate mother.

Physicians are not lawyers and shouldn’t pretend to help the parties with the surrogate contract issues. However, they can help the parties understand the medical issues such contracts create.

Treat Surrogate Mother and the Fetus

According to the recommendations of a 2008 American Congress of Obstetricians and Gynecologists (ACOG) committee opinion, a medical professional’s obligation is to care from the pregnant woman and the fetus.

“While caring for a surrogate mother it is the professional obligation of the obstetrician to support the well-being of the pregnant woman and her fetus, to support the pregnant woman’s goal for the pregnancy, and to provide appropriate care regardless of the patient’s plan to keep or relinquish the child. The obstetrician must make recommendations that are in the best interests of the pregnant woman and her fetus, regardless of prior agreements between her and the intended parents.”

This contrasts sharply with  California law since 1993 when the California Supreme Court approved surrogacy agreements for gestational surrogacy (Johnson v. Calvert). The court ruled that as between the genetic relationship of the woman who donated the egg, and the relationship of the surrogate, “she who intended to procreate the child-that is, she who intended to bring about the birth of a child that she intended to raise as her own-is the natural mother under California law.”

The parties who hired the surrogate should be the parents. By making this ruling, the Court signaled it’s intent to look at the intent of the parties to determine who was the parent.

How does the healthcare system respond to conflicts between the birth mom and the contracting parents? The ACOG Opinion requires the physician to support the goals of the pregnancy of the birth mother. The California Supreme Court (later codified), gives the mantel of parenthood to the parties who hired the surrogate. How does the doctor decide when the parties disagree?

California Case Demonstrates the Issues.

One California case demonstrates some of the issues (CM v. MC.) In the case, a 50-year old male postal worker who lived with his mother wanted a male child. Though a surrogacy agency, he contracted with a 47-year old women to carry his surrogate baby. The intended father and the surrogate mother never met. Through the broker, a 75-page agreement was signed. The agreement provided that the mother would receive $27,000, with a $6,000 bonus in the case of multiple pregnancies, that the woman would become impregnated by implantation of donor eggs fertilized by the postal worker’s sperm, and that the intended father would pay medical bills and insurance for the surrogate during the pregnancy. The agreement further provided that the intended father wanted a male child and that in the event of a multiple pregnancy, the intended father had the right to require “selective reduction” of the pregnancy.

The surrogate mother became impregnated by implantation, resulting in a pregnancy of three males. The surrogate mother either did not read or did not understand the agreement she signed. The agreement allowed the intended father to make a decision about selective reduction if there was a multiple pregnancy. The surrogate mother, however, did not believe in abortion. When the father instructed that she reduce the pregnancy, because he was running out of money and could not handle triplets, the surrogate mother refused. Litigation resulted. The end result was that the triplets were born and the intended father got custody.

Guidelines for Treating Surrogate Mothers

The following is a list of guidelines for caring for surrogate mothers.

First a warning: there is little legal guidance for many of these guidelines and there has been too little discussion about the legal obligations of the physician in these situations.
Get a copy of the Surrogacy Contract.

The purpose of obtaining this agreement is not to give legal advice or to make decisions based upon the agreement. Rather, knowledge of the agreement can give the obstetrician important information about the medical choices made by the parties. Some of them include:

a. HIPAA Waiver. Surrogate contracts usually give the intended parents the right to information about the pregnancy. This should be reviewed by compliance professionals. If it’s not sufficient, the practices’ HIPAA waiver should be offered to the surrogate so that the intended parents can receive information and possibly attend in office appointments.

b. Surrogate Mother’s Behavior During the Pregnancy. Standard contracts provide for behavior of the surrogate mother during the pregnancy, including diet, abstention from tobacco, achohol, drugs, etc., the utilization of vitamins, exercise, and frequency of visits to the physician. Agreements may even require treatment of the child before birth, like reading to the child, or music, or birth methods, etc.

c. Decision Points During the Pregnancy. The physician can take note of the obligations of the surrogate to make certain decisions, such as DNA testing, or selective reduction as described in the case above.

Note that there is some risk in obtaining the Surrogacy Contract:  By having knowledge of the terms of the agreement, a slighted party may try to sue the physician for a tort called “interference with contract.”  This would be an allegation that the physician intentionally attempted to get the surrogate to breach the contract.  There is no known case in the country for this cause of action at this time.

Follow The Instructions of the Surrogate Mother.

As the pregnancy unfolds, the ideal situation would be when the surrogate mother and the intended parents visit the physicians’ offices together, and they make joint decisions as the pregnancy proceeds. However, if there should be conflict, or if the physician is faced with a situation where the surrogate mother is not following the surrogacy contract, the physician should follow instructions of the surrogate mother unless and until the surrogate parents obtain a court order. The physician should stay out of any legal dispute.

Inform Intended Parents.

As long as the surrogate mother has allowed the intended parents access to medical information, and as long as such waiver of privacy is not terminated by the surrogate mother, the physician should share information about the pregnancy with the intended parents. If such privacy waiver is revoked, the physician should inform the intended parents of such revocation, and stop sharing information without a court order.

 Absentee Intended Parents.

Often, the intended parents are absent until the birth. In such cases, the physician should only follow the surrogates instructions during the pregnancy.
 After Birth Issues.

Generally, surrogate contracts allow intended parents to go into court and get an order of custody at the time of birth. If such an order exists, the intended parents would usually have the right to make all decisions regarding children born to surrogate parents. Without such order, the surrogate mother’s instructions should be followed.

This article is meant as guidelines in an area of law that has no real guidelines. Suggestions or different experiences are welcomed.

By Matt Kinley, Esq.  Founder of Kinley Law Practice.