Surrogacy and Security
By - Pooja Suganthan, Edited By - Lok-Yee Lam
Surrogacy is a rapidly growing method of assisted reproduction that provides individuals with an opportunity to bear children through a surrogate mother who carries and delivers a child for the individual. There are two types of surrogate mothers: traditional and gestational. Traditional surrogates are carriers whose eggs are artificially inseminated by the father’s sperm. Gestational surrogates use the in vitro fertilization technique, whereby a doctor collects the biological mother’s eggs, fertilizes the eggs with the father’s sperm, and implants the fertilized embryo in the surrogate’s uterus. In this context, a traditional surrogate would be the child’s biological mother, while a gestational surrogate would only be the birthmother (Patel et al., 2018).
The lack of uniformed surrogacy regulation across the United States presents issues after the child’s birth because parental rights are not always guaranteed. Different states have different positions on surrogacy, ranging from expressly prohibited to not clearly addressed to expressly allowed (Finkelstein & Kintominas, 2016). Depending on the state, the parent-to-be(s) may have to pass adoption proceedings or declare parentage prior to the baby’s birth. Many couples or individuals who choose to use a surrogate hire an attorney to clearly outline the roles and responsibilities of both parties. There have been high-profile cases where surrogacies have not gone as planned. For example, in California, a father-to-be requested that his surrogate abort one of the triplets that she was carrying because he wanted twins. The surrogate mother said she would take custody of the third child. In response, the father attempted to claim custody of all three children. Another well-known example was when Sherri Shepherd and her husband had a divorce during their surrogate's 7th month of pregnancy. Shepherd went to court in hopes of removing her name as the child’s guardian and no longer paying child support (Radcliffe, 2016). Deregulated surrogacy agreements can lead to messy situations. It’s less harmful to avoid these situations for both parties if we enforce surrogacy contracts and establish centralized surrogacy laws to protect the parents-to-be(s), the surrogate, and most importantly, the child(ren).
It is true that surrogacy can vary case by case, making it difficult to establish federal surrogacy laws. Despite the challenge, there should be regulations that require surrogates and parent-to-be(s) to sign contracts prior to the pregnancy to protect the rights of the parents, surrogate, and most importantly the child. These contracts should address factors such as the roles and responsibilities of both parties, compensation, detection of birth defects in the baby, the baby’s sex, number of children, and parental rights of the surrogate (Finkelstein & Kintominas, 2016). Revisions can be made to the contract as long as both parties agree. Despite the stress, financially and emotionally, proper planning and contract creation can help minimize risks and protect the baby.
Finkelstein, A., & Kintominas, A. (2016). A National Conversation Informed by Global Lawmaking. 90. Patel, N., Jadeja, Y., Bhadarka, H., Patel, M., Patel, N., & Sodagar, N. (2018). Insight into different aspects of surrogacy practices. Journal of Human Reproductive Sciences, 11(3), 212–212. Radcliffe, S. (2016, January 21). Lawsuit Filed by Surrogate Mother Raises New Legal, Moral Issues. Healthline. https://www.healthline.com/health-news/lawsuit-filed-by-surrogate-mother-raises-new-legal-moral-issues-012016