Written by Guest Expert Melissa B. Brisman, Reproductive Lawyer
Welcome to the United States of America, where individuals and couples from all over the world bring their dreams and their hard-earned money in the hopes of creating a family with the use of expanding and innovative reproductive technologies.
The Booming Fertility Industry in the USA
The fertility business is big business, and our capitalistic system has allowed the industry to flourish, creating opportunities for people who would have never been able to procreate.
Understanding Gestational Surrogacy: A Growing Trend in Reproductive Technology
Gestational surrogacy is when a woman carries a child unrelated to her biologically for another person or couple. This process has become one of the fastest-growing reproductive technologies accessed in the United States. However, gestational surrogacy is fraught with legal and ethical dilemmas, and it is illegal in many countries. As a result, the United States has become the destination de jure with its flexible legal paradigm, allowing for the smooth transfer of custody of the resulting child to the intended parents. The increasing availability of sophisticated genetic testing, both pre-embryo transfer and post-embryo transfer, also draws foreigners to choose the United States for surrogacy. The United States boasts modern technologies, high success rates, and favorable surrogacy laws, allowing the intended parents to be declared the legal parents upon birth.
The Legal Landscape of Reproductive Rights: Post-Roe v. Wade Era
Does this all sound too good to be true? Well, it just might be. While many areas of the law and reproductive technology have advanced in the United States, the laws pertaining to a woman’s right to terminate a pregnancy in her womb have been curtailed since June of 2022.
Prior to June of 2022, Roe v. Wade, 410 U.S. 113 (1973), remained the law in the United States and provided guidance so a woman could legally terminate her pregnancy at certain intervals of the pregnancy. Generally, prior to the change in law, every state had to allow a woman the right to terminate her pregnancy prior to the point of viability. Roe v. Wade protected the right of a woman to control her reproductive choices.
However, in June of 2022, Roe v. Wade was overturned, and the abortion laws became left to the states to regulate. As a result, many states adopted laws essentially prohibiting abortion under almost all circumstances except to save the life of the mother.
Navigating the Complexities of Surrogacy and Termination Laws
With the laws different in every state, navigating termination and surrogacy has become more complex. When drafting termination sections in a contract, attorneys must consider the client’s preference, as well as state laws and trending political mores, which may create situations where the laws change while a gestational surrogate is pregnant.
The Role of Reproductive Attorneys in Surrogacy Agreements
Navigating these decisions takes a skilled and experienced reproductive attorney. However, it also comes down to taking a blind leap of faith. In surrogacy, when matches are created between intended parents and a surrogate (also referred to as a carrier or a gestational carrier), it is important that the parties discuss termination issues in advance and that intended parents are only paired with like-minded surrogates. Some people believe a termination should only occur if the life or health of a surrogate is endangered; others may only want to abort for serious defects, while some may reduce due to the number of fetuses in the womb. As a lawyer, it is less important what people’s views are than that they match and can be accomplished legally.
Despite a contract indicating that a surrogate agrees to a termination for fetal defects, no physician or hospital will perform a termination procedure on an individual who does not consent to the procedure. Although intended parents tend to focus on abortion since this is a scary situation, this fact also applies to most procedures delineated in the gestational surrogate agreement, including the need for a cesarean section, amniocentesis, and chorionic villus sampling (CVS). It would be almost impossible to obtain a court order for the specific performance of any procedure done to the surrogate. Many state laws indicate that the gestational surrogate is solely responsible for the clinical management of her pregnancy, but the intended parents have full custody and control of any decision regarding the child once the child is no longer in the surrogate’s womb.
Contractual Provisions for Out-of-State Termination in Surrogacy Agreements
In order to avoid state laws that have restrictive termination laws, most states will allow a provision in the contract that the surrogate can agree to travel to another state for a termination.
Below is an example of a provision requiring the surrogate to travel out of state for a termination and requiring the intended parents to reimburse the surrogate for any expenses related to the process.
Gestational Carrier agrees that if requested by Intended Parents, she will travel to another state to terminate the pregnancy if such termination is prohibited by the laws in the state where Gestational Carrier intends to deliver or if, at the time of Intended Parents’ request, the pregnancy is beyond the time limits prescribed by statute by the laws governing the state where Gestational Carrier intends to deliver. If such a request is made, Intended Parents shall be responsible for the cost of the termination procedure, if not covered by Gestational Carrier’s health insurance policy, as well as incidental, reasonable costs incurred, such as transportation expenses, hotel accommodations, meals, and supplemental living expenses allowance and the cost of companion care for Gestational Carrier and Gestational Carrier’s Spouse or Gestational Carrier’s companion.
If a surrogate refuses to terminate, she cannot be forced to have the termination, but she can be sued for monetary damages, so it is in everyone’s best interest for all parties to be open and upfront on their views prior to pregnancy.
Addressing the Emotional and Legal Complexities in Surrogacy
Surrogacy can be very scary from both the intended parents’ and the surrogate’s perspective.
Surrogate’s worry: if something is wrong that was not detected in utero and/or if the intended parents’ circumstances change, will they no longer want the baby? In most scenarios, intended parents long for a child and would never dream of abandoning the child.
Intended Parents are afraid: what if the carrier wants the baby, what if she fails to abort and I have to raise a child I am not capable of raising, and/or what if she ingests drugs and harms the baby?
Once one of these questions creeps into the psyche, the mind can start racing and create fears and anxieties. In these cases, it is good to discuss your fears with the other party so that a mutual meeting of the minds can be made.
A contract is only as good as the intentions of the parties who created it.
With proper medical, psychological, and legal advice and screening, parties should be able to avoid these problems. It is always good to remember that situations where (1) a termination is necessary and (2) there is no meeting of the minds are outliers. I have not had a single case since 1998, when I began practicing in this field, where a parent was forced to take custody and raise a child when they requested termination. Surrogacy is a rewarding and wonderful experience; when professionals are involved, anxieties should subside.
About Melissa B. Brisman
Attorney Brisman is an internationally recognized lawyer who is licensed in the States of Massachusetts, New Jersey, New York, Pennsylvania, and Texas. She graduated from Harvard Law School and graduated valedictorian from the Wharton School at the University of Pennsylvania. Attorney Brisman utilized surrogacy for her own three children, starting with the birth of her twin boys in 1998.
Attorney Brisman has assisted in the writing of surrogacy laws in New York and New Jersey and has argued and won many landmark cases pioneering reproductive rights in many states. In 2010, Melissa was invited to Taiwan to assist the government in drafting surrogacy legislation.
Melissa was the recipient of the 2017 Advocacy Award from P2P (Path to Parenthood), the 2015 Infertility Hero Award, and the 2004 Star of Resolve Award. She is a chapter author of Reproductive Medicine Secrets by Zev Rosenwaks, Fertility Preservation in Male Cancer Patients by John P. Mulhall, and Principles of Oocyte and Embryo Donation by Mark V. Sauer.
Melissa’s law firm drafts and negotiates contracts for many types of reproductive arrangements, including gestational carrier contracts, ovum, sperm, and embryo donation contracts and adoptions; finalizes same-sex and step-parent adoptions; obtains court orders for gestational carrier arrangements to allow the intended parents to go directly on the birth certificate of their child at birth; and reviews insurance books on behalf of intended parents and their gestational carriers.
Babies are her business… 5,000 plus (and counting!) babies.
This article pertains to general information regarding third-party reproduction and is not intended as legal advice, nor does it imply an attorney/client relationship with Melissa B. Brisman, Esq., LLC; the contents herein should not be relied upon without professional counsel.