We live in an age of medical wonders that allow organs to be implanted in a new body to save lives, targeted radiation used to remove cancerous cells, and brain-computer interfaces that allow those rendered mute by amyotrophic lateral sclerosis (ALS) to speak again. While people from a hundred years ago would likely be shocked and amazed by such advances, they'd perhaps be just as flabbergasted at surrogacy, and how an embryo created from two other people can be implanted in a third to produce a living child.
What might also shock them a bit is the potential legal ramifications and fighting that can result when the surrogacy doesn't go as planned. A recent instance demonstrated how badly things can go awry in the relationship between the intended parents (IP) and the gestational carrier (GC) if the child is a stillbirth or otherwise isn't successfully born. Things can quickly become ugly. Very ugly.
In addition to facing three times the chance of pregnancy complications by carrying someone else's embryo, GCs can find themselves on the wrong end of a power dynamic. This can mean losing autonomy over what's happening to their body and facing harsh penalties and staggering debt if anything goes wrong, whether it's their fault or not. Does essentially renting someone else's womb subjugate them to doing as commanded by the person wielding the checkbook?
Health and Financial Complications
Traditional means of surrogacy have long served as a way for people who desire to be parents to have a child without either of them gestating and delivering. Someone else's womb is used instead. In traditional surrogacy, the prospective father's sperm is used to impregnate the surrogate. Under modern law, the biological father is recognized as the legal father, while the other prospective parent must adopt the child.
Gestational surrogacy is different, with the first successful instance occurring in 1985. The intended father and mother are both donors, with his sperm and her egg used to create an embryo in a lab. The embryo is then implanted in the GC, who attempts to carry to full term and give birth.
There are countless reasons IPs may opt for pregnancy through a surrogate, but many of them are medically based. Age could also be a factor, as can a demanding career. Some companies, particularly in tech, offer five-figure subsidies to their employees to have a child through others.
One thing gestational surrogacy is not is cheap, and there tends to be a large wealth and status gap between IPs and GCs. This can lead to a power imbalance between the two, particularly when problems arise. Disputes can also lead to tricky ethical and legal questions. If everything goes well, it's generally not an issue. But if the fetus or the woman carrying it experiences health problems, who pays for the astronomical medical bills? Who has the right to make hard medical decisions?
In almost all modern instances, a gestational surrogacy is a financial agreement that involves a contract between the IPs and the GC. While both federal and state governments have laws in place to prevent child trafficking or "baby shopping" from occurring, only New York requires surrogacy agencies to be licensed. Tasked with matching IPs and GCs, these agencies often serve as the liaison between the parties once the agreement is in place. They may be called on to enforce confidentiality clauses and arbitration to settle disputes.
There is no one-size-fits-all surrogacy contract. IPs can request any provisions from a GC when drafting a contract. Common demands include dietary restrictions, banning sex with others while attempting to become pregnant, and forbidding certain activities after the pregnancy has been achieved, but IPs can ask for anything they want in the contract. Since many GCs are entering into an agreement due to financial concerns, they have much less negotiating power than the IPs.
Certain contracts and arrangements can illustrate the imbalance of power between the IPs and GCs. Some contain power of attorney for the IPs with regard to the fetus, and severely limit the medical decisions the GCs can make without legal repercussions. If the GC breaks the surrogacy contract in any manner, the IPs can stop making any and all agreed-upon payments. This includes medical bills, which can become staggering during a difficult pregnancy. When the IPs are guilty of breaking a contract, GCs must turn to the courts and legal action to attempt to get relief.
It's why both IPs and GCs are recommended to speak to an attorney prior to entering into any contract regarding surrogacy. Doing so can help anticipate and avoid legal conflict if not everything goes as planned.
Well, That Escalated Quickly
It's a common desire for some to extend their legacy through the continuation of their bloodline. While surrogacy can offer an alternate path to meet that goal for IPs either unable or unwilling to have children themselves, it also creates a mixture of emotion and risky medical procedures that can rapidly become volatile and toxic.
In the case of Silicon Valley IPs and the single mom serving as their GC, a friendly and almost familial relationship quickly went sideways as complications with the pregnancy set in. The child would end up being stillborn, but the prospective mother had already started attempting to destroy her GC's life before that point. This included talking negatively about the GC on social media, refusal to pay medical bills, and alleging to the GC's current and possible employers that the GC was guilty of fraud.
The clash illustrates the disparity in social class between the IPs and the GC. While the doctors involved said the child's loss was blameless (the U.S. has an extremely high rate of pregnancies ending with a stillborn), the prospective mother refused to accept that explanation. Having already gone through nine attorneys, she's bringing on yet another attorney to continue her crusade.
Meanwhile, her former GC has a restraining order and an arrest warrant in her home state against the IP for doxxing her. Regardless of the final outcome, there's not much chance of either side having a happy ending when all is said and done.
Related Resources
- Restraining Order Basics (FindLaw's Law and Daily Life)
- What Is the Most Common Legal Remedy for a Breach of Contract? (FindLaw's Learn About the Law)
- Surrogacy Law (FindLaw's Surrogacy and Artificial Conception Law)
