Surrogacy, Contracts, Promises and Control

Last week I made my second attempt at a discussion on surrogacy and contracts.   At that time I promised to go on to remedies, but in the meantime I’ve also been thinking about what I wrote and whether it requires a little further elaboration.

In my earlier post I wrote about how those who are intending parents might want to control many aspects of the surrogate’s life during the time the surrogate is pregnant–things ranging from what she does or does not eat to the sorts of prenatal care she receives to decisions about whether to have an abortion.    It’s not hard for me to understand that this desire might exist.   But I think I jumped to quickly from understanding that the desire exists to accepting that people might act on the desire.  

It does seem to me that some of these things ought to be discussed and (ideally) agreed upon by surrogates and IPs.   At the very least, some sort of match-maker ought to watch out for the really big areas where disagreement might spell disaster.  So, for example, if the IPs are adamantly opposed to abortion, while the surrogate is not (or vice versa) it seems clear that you could be heading for trouble.  

But even if you match people based on general views, it seems to me there is value in face-to-face discussion between IPs and surrogates where people contemplate at least some of the potentially hard situations they might face.   And it makes sense to me that they might work through a plan on what they’d do if  (fill in difficult circumstances) and write it down.

However, there are a whole range of issues (diet, exercise, hair dye) where I find myself doubting whether they parties really ought to try to agree on these things.   As I said, I understand the IPs desire to control these things, but I’m convincing myself that they cannot hope to do this and so the honest thing is to tell them to just get over that need.   If they cannot get over that need, then maybe surrogacy is not for them. 

I reach this conclusion for two reasons.  The first has to do with remedies–the long promised sequel to the earlier post:  Terms about what the surrogate eats or how she exercises could never be enforced.     No court will order a surrogate to eat particular foods or engage in particular forms of exercise.   And if instead the IPs pursued an action after the surrogate had failed to comply with some term of the agreement, what remedy could they seek?   The terms we’re talking about are so minor when compared with the overall agreement that a deviation from them wouldn’t void the whole agreement.   And it would be nigh on impossible for the IPs to show any harm from the sorts of breaches we’re talking about.   If the surrogate eats sushi when she agreed not to, can anyone prove that harm was done to the developing fetus?   I very much doubt it. 

My second reason is rooted in some of the comments raised earlier and in some conversations I’ve had around this.  Attempting to exercise this sort of control over the surrogate is just flat out offensive to me.    I do worry about potential exploitation of women who are or would be surrogates.   Encouraging contractual provisions around things like diet, etc. seem to me to invite a kind of dominance that troubles me.    

Now there is a fine line I’d like to draw here.  I’ve suggested in the past that the key to successful surrogacy is the relationship between the IPs and the surrogate.   If there’s a good relationship then maybe the IPs can say to the surrogate “we really wish you wouldn’t …..” or “if you would ……., we’d be grateful.”   And maybe the surrogate would respect the request.     That’s fine with me.  I’m not against communication.   I’m not against explaining what’s important to you and maybe even asking for it.    It’s the idea that you can bind someone to these sorts of terms that bothers me.  

One final side note:   I think one reason some people opt for surrogacy in India might be that the surrogates there are much more clearly controlled, if not directly by the IPs then by those with whom the IPs contracted.    The control over the surrogates, who live in regulated compounds, disturbs me as well.     



16 responses to “Surrogacy, Contracts, Promises and Control

  1. I agree. It just occurred to me that all of these various arrangements have elements of these things that a judge is going to have a hard time enforcing like give up your kid or conceive a child or hand over your embryo….
    Have you heard of any cases where a man or a woman retracted their consent to conceive offspring with clinic clients after it was already selected and purchased by the clients – like say in deep storage. Especially now that its possible to freeze genetic material, lets say a guy had a moment of private clarity and changed his mind and said I want to recall the stock from the shelves I no longer consent to conceive children with your clients. Would a judge enforce the no restrictions on his sample clause with the clinic? Could the mother of one of his children, who has his sperm frozen in case she wants another child from him, sue him? Sue the clinic? The thing about the patients who pay to conceive – they dont have an agreement with mr anonymous, how could they have a contract with an anonymous man, you cant prove he agreed to anything. So their agreement is with the clinic and are they even allowed to make a promise that one person will conceive children with another person? Can an intermediary promise that? Can the intermediary in a contract say that they are buying the right to reproduce him with whomever they want and he can never change his mind? That is about as close to owning someones soul as you can get since you have to power to reproduce the essense of their being. Even adoption gets aweful dicey – just because the promise to give another person your child is cutting it close
    It did just occur to me why anonymity ever existed and it is a good thing – i just said that. yes. If a couple gives their newborn up for adoption turning them over to the state and signs off that this relinquishment was willing and walk away. Their signature proves the state did not kidnap the child now in their custody and so they are free to find the child a home. Then the transfer is really between the state and the adopting parents and not like a contract between parents and adoptive parents. The parents walked away of their own free will the state steps in and does the transfer and then neither one should know eachother because the state is not really in a position to keep parents from their child if they were to try and approach their kids, its almost only ethical if people adopt existing babies relinquised freely. Like the only reason the state would want to know whe the parents were would be to prove the child was not kidnapped other than that walking away from your kid is abandonment. Then with genetic material. Sure they may donate sperm and eggs but they abandon their baby. Nobody is ever a parent until their child is born. It makes no difference how long it is. So Disclosure does highlight the fact that the men donate sperm but then also walk away from their kids. How much of that is enforceable?

    • great questions marylin I think the state would be on the clinic’s side. I think once the guy relinquishes the sperm the clinic owns it for better or for worse. They are business, so they must have lawyers who crafted these laws for them to sign.
      These forms are based on a view that disembodies the sperm from the man who made it, it’s just some stuff to them with no human connection
      but Julie would know more about that….

    • I have not heard of a case where a gamete provider (egg or sperm) changed their mind after a sample had it frozen and asked for it back or for it to be destroyed. It would be far more likely to arise with sperm–egg freezing is pretty new and not that common. It’s a great question and it forces you to think through how you analyze the transaction. Is it a sale? It’s not usually structured as a legal sale–the money is not actually given to buy the sperm, but rather as reimbursment for time/trouble/etc. (This means that the provider gets the money even if the sperm turns out to be unusuable.) Maybe I can find the answer.

  2. You hit on a really good point here- loss of control. If an IP can not accept that they do not have control of the pregnancy, nor control of the surrogate, then absolutely yes, they should not pursue surrogacy (at least not with that surrogate, there may be another person with whom they can loose that need for control, for whatever reason). At the same time, I would say that if a person can not accept the loss of control, then they probably should think twice about having children in general, because what is parenting if not a loss of many controls? In my personal experience, that need for control is what often drives people to surrogacy over adoption (in the case of heterosexual couples experiencing infertility especially). In an adoption, you have had no control what so ever over the pregnancy up to a certain point- where ever you became involved with the pregnant woman. In surrogacy, you have some semblance of control from the get-go, through contracts, match meetings, choice of gametes/donors/surrogates, etc. That sense of control (real or perceived) is very attractive to humans.

    • Control is such an interesting issue. I agree with you that having kids does require a great deal of giving up control. (I have this vivid recollection of the moment I realized I could not make my first born sleep–all I could do was create optimal conditions and then wait.) At the same time, control seems so vital, because you want to do the very best for your child. And as you raise a child you give the child more and more control, until ultimately they are out there on your own.

      Surrogacy does seem to offer greater control than adoption does, and I’ve wondered if that is why people choose it. (Studies, anyone?) But then the exercise of control over the surrogate becomes an issue all on its own. Maybe those who are actually going to be well-suited to parenthood are the most likely to be able to negotiate the control issues with the surrogate, because they are prepared, in the greater scheme of things, to give up some control.

      It does make me wonder about those who choose surrogacy in India, say, because the surrogates are so much more restricted in their freedoms. How do they fare as parents?

  3. I bet we can learn a lot from the old “Slave Codes” of the antebellum south:One of the worst conditions that enslaved people had to live under was the constant threat of sale. Even if their master was “benevolent,” slaves knew that a financial loss or another personal crisis could lead them to the auction block. Also, slaves were sometimes sold as a form of punishment. And although popular sentiment (as well as the economic self-interest on the part of the owners) encouraged keeping mothers and children and sometimes fathers together, these norms were not always followed. Immediate families were often separated. If they were kept together, they were almost always sold away from their extended families. Grandparents, sisters, brothers, and cousins could all find themselves forcibly scattered, never to see each other again. Even if they or their loved ones were never sold, slaves had to live with the constant threat that they could be.

    African American women had to endure the threat and the practice of sexual exploitation. There were no safeguards to protect them from being sexually stalked, harassed, or raped, or to be used as long-term concubines by masters and overseers. The abuse was widespread, as the men with authority took advantage of their situation. Even if a woman seemed agreeable to the situation, in reality she had no choice. Slave men, for their part, were often powerless to protect the women they loved.

  4. john whats the connection???

  5. Separation of families however the owners determine, ownership of people, legal decisions and codes to regulate it all…it’s not a “connection” it’s the same thing.

    • “Separation of families” assumes the existence of a family to separate. Those who endorse surrogacy would probably say there is no family bond created between surrogate and child. Thus, separating surrogate and child isn’t about separating a family. I’m certainly struck by the number of surrogates who say something like “the child I am carrying is not my child.” This is not a statement about genetics or about law. It’s a reflection of their own convictions that they are not in a parent to that child and that they have no expectation of being treated like one.

  6. I see no paralel at all and it minimizes the horrors of slavery

    • They’re treated better than African slaves were, to be sure. I didn’t say that slaves were treated just like intentional children, I said creating intentional children is slavery that scatters families and exploits women just like slavery did (that’s the part I quoted, from here) so modern lawyers should look at how human ownership was handled back then to answer some of these tough dilemma questions that keep coming up.

  7. wow kisarita the similarity between the fertility industry and slavery is such an obvious parallel. People acting as if they can just trade and sell people in or out of families, those being sold or traded have no say in it at all. We don’t have a say in who we are made by but our origin is clear and there is nothing prior to get back to other than those who made you. To me the similarities between the fertility industry and slavery are too many to count. Certainly anyone who has an anonymous parent never reaches adulthood and freedom like the rest of us. The people who raised them retain control over their information beyond the age of 18. They are not free to obtain the same sorts of info as the rest of us. Its oppressive.

  8. “I see no paralel at all and it minimizes the horrors of slavery.”
    He’s just talking about there is a mind set that objectifies the child making them less than human not deserving of the famililial relationships everyone else has because their family is of no purpose to the person with the money. He even pointed out that it does not matter how well the person in control, treats the person being controlled, a line has still been crossed and they have orchestrated another person’s reality in a way that is master-like, not parent like.

    • Um. An anonymously conveived person does not have the right to know who their genetic parent is. Other than that there are absolutely no restrictions.
      There is absolutely no paralel to slavery. Such exxaggerated and melodramatic comparisons do little to win folks to yoour point of view

  9. Kisarita
    I get what you are saying about it being a melodramatic comparison, I do. But consider for a moment the people who are not actually parents are able to purchase another person’s child. Not that the child is enslaved, but they are sort of sold out of their own families and into the families of strangers. People may donate some sperm or an egg but they abandon their child once its born, whenever that is. The parents have been paid to allow their child to be raised by strangers – for a small amount of money, to help the strangers out because they cannot have children of their own.
    Its not just being denied the ability to know who their parents are its that the people who paid have the right to pretend to be the child’s parents and never tell them the truth if they don’t want. Its not just being denied the ability to know who their parents are its that they are not allowed to know who they themselves are or who the rest of their family is and it does not end when they reach the age of majority, they remain permanently under the control of the people who purchased them. You must see that right? It is not mellowdramatic at all there are hundreds of thousands of people born every year that remain under the legal control of the people who purchased the ability to call themselves mother and father. It only seems melowdramatic because the families they are raised in emulate the biological family model. Everything looks normal and the people who raised then love them so what is there possibly to complain about? They’re pawns. Its so freaking sad.

    • I think a great deal of the language you are using here clouds the issue. First off, I assume we aren’t necessarily anaologizing surrogacy to slavery, right? It’s perfectly clear to me that some surrogates choose to become surrogates–perhaps partly for altruistic reasons and partly for the money–and that they find it a perfectly reasonable experience, which ends after a time and then off they go with their lives. That’s not very much like slavery.

      You want to describe surrogacy (or conception using third-party gametes) as akin to selling a person. (This is assuming there is money involved.) It seems to me that this makes some assumptions about who the child “belongs to’ before the law takes over. Your contention is that (naturally?) the law is the child of the person who provided the gametes, and thus, ownership (or parentage) of the child is being rearranged for money. That seems like sale of a child. But I don’t agree that the child is the child of the person to provided the gametes in the first place. Thus, parentage/ownership is NOT being exchanged for money. And of cousre, we already know we disagree about this.

      It’s a bit like the contract discussion with regard to surrogacy. It is not the contract that makes the IPs parent and the surrogate not a parent. Surrogacy works best in jurisdictions that accept a legal rule that recognizes intended parents as legal parents. So the intended parents are the parents of the child whether there is a contract or no. It isn’t because the surrogate sold the parental rights.

      I do understand this seems like a game of semantics, and there is some of that here. But that is not all that it happenning. There are fundamental, non-semantic disagreements about what circumstances should or do give a person the status of legal parent to a particular child.

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