Surrogacy on NPR: A Complicated Map and Some Representation Questions

Once again I’ve been derailed, this time by a story about surrogacy this AM on Morning Edition.  (I’ve linked to a text version but from there you can listen to it, too.  The radio version is not identical to the text version.)  It’s a thoughtful discussion of surrogacy.   This post will make more sense if you listen (or at least read) first.

The most obvious taking-off point for me, given my last post, is the varying regulation people participating in surrogacy face.   The story follows the work of Diane Hinson, who helps arrange surrogacies.  There’s this map she uses.    It shows the different laws in the different states, ranging from green to red.   As Hinson notes, though, there are  24 (I think) states with no statutory law and no cases–which basically means no guidance.  

Now it is hard for me to see what good can come of all this variety.   It’s surely a trap for the unwary.   And the map only covers US law.  Surrogacy is, as the NPR story makes clear, a globalized business.   This only adds layers of complexity.

Even the wary (like Hinson) could run into legal complications if a pregnancy takes an unexpected turn.  In the radio version, there’s an account of a day that Hinson spent trying to ensure that a laboring surrogate remained in Maryland rather than being moved to DC. This mattered because surrogacy is illegal in DC and so having the surrogacy give birth there creates all sorts of potential problems.

This raised a question for me–one not discussed in the NPR stories:  Who does Hinson represent?   Who is her client and who does she work for?

This is one of the tricky parts in surrogacy.   Because, as I think the story makes clear, surrogacy can work (and it most often does work) but it depends on getting the right people involved and the right match between them.   (I’ve written about the hazards of DIY surrogacy, which typically is very short on screening.)   Is this most likely to happen if you have matchmakers–whose interest is in making the deal?  Or is this most likely to happen if you have representation for each of the parties?  Or do you need both?   The latter adds to the cost of surrogacy, of course.

At the very least there must be clarity about who a lawyer represents, and I’d imagine that Hinson is clear about that.  Remember there’s a 55-page contract.   I’m hoping that neither party signs that without someone–someone who has her/his/their best interests in mind–reviewing it with them.

This is not to say that surrogacy should be an adversary process.   Obviously the surrogate and her family work with (and I strongly prefer “with” to “for”) the IP(s).   But as they enter into the arrangment all the people involved need to understand what they are getting into and what they may encounter along the way.   Maybe I’m stuck in an old model, but I’m most confident this will happen if each person has some sort of experienced counsellor who looks at things from her/their point of view.

Listening to the surrogates in the radio story is very valuable.  As Jennifer Ludden (the reporter) notes, surrogacy usually works out fine.   The press, however, tends to focus on the small number of instances where it doesn’t.   That can leave us with a distorted picture.

It’s pretty clear to me, listening to the surrogates, that being a surrogate is a fine thing for some women.  Not for all women–not by any means–but for some.   These women are not exploited victims.   They’re doing something they enjoy and they are being paid for it.

It’s been a long time since I’ve written about surrogacy here, but if you look under the tags for surrogacy (with various modifiers) you’ll find extensive discussions.  As with so many aspects of ART it seems to me that surrogacy can be fine and it can be a nightmare.  We ought to think about setting up systems that maximize the fine outcomes and offer us some predictability.  I am not so naive as to think that we can do anything to guarantee that there will never be a bad outcome, but at the very least, we can shape what will happen when things do go wrong.

The NPR story is the first of three over the weekend.   It will be interesting to see where it goes next.

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9 responses to “Surrogacy on NPR: A Complicated Map and Some Representation Questions

  1. You mentioned that it is hard for you to see what good can come from the law being different in every state. I agree with you and would add that it would be nice to have federal guidelines for states to follow when making laws about this stuff.

    Who does the arranger work for? Follow the money Julie. If you want to get technical about this stuff I bet that the person hired by the people who want the baby also represents the people willing to have the babies and so right there, as you pretty much pointed out, is your conflict of interest. I highly doubt the women being paid to carry these babies hire their own attorney to represent them. If they did hire their own attorney it would never in a million years be the kind of quality attorney that the people looking to rent her womb could afford.

    Just because its fun to split hairs every now and again you mentioned that you prefer to say the surrogate and her family work with the intended parents rather than for them. You cannot say that and simultaneously be telling the truth. If they have a contract one of them is working for the other one – someone is paying someone else to do something FOR them. Maybe the gestational carrier and the egg donor work with one another, or the doctor works with the gestational carrier as they are both paid by the same people to produce the thing those people want. The person receiving money is doing something for the other person in exchange for valuable consideration, which is, if I am not mistaken one of the essential things a contract has to have to be enforceable you need an object, consideration and I think time is the last one for a contract. Oh and a way to get out of the contract. That’s it I think. Oh and it has to be for something legal. Their lawyer works with the surrogate and both the lawyer and the surrogate work for the people who want the baby.

    I have no idea what to make of all that. But if you ever want someone to figure out what’s really going on I’m your guy. Or just follow the money.

    • I think you’ll find that many of the people who work in this field are quite attentive to the potential for conflicts and do indeed insist on separate representation for the surrogate and the IPs. The fact that you may, in your practice, represent IPs in one instance and the surrogate in another isn’t bad–indeed, it can be good. It can give you greater insight into the view from each side. What’s key is that in any given instance you be clear about who you are representing and that you represent that interest fully and fairly.

      I don’t doubt that there are scuzzy people who cut corners in this as in all things. But I think you are mistaken to assume everyone is motivated by money alone. Just as a surrogate may feel that she is doing something extraordinary and valuable and being paid for it, so can a lawyer or a counsellor feel that. And if your interest is in helping people (while you make your living) then you have no interest in getting someone unsuited for the job into the job. That way will only lead to trouble.

  2. “I highly doubt the women being paid to carry these babies hire their own attorney to represent them. If they did hire their own attorney it would never in a million years be the kind of quality attorney that the people looking to rent her womb could afford.”
    Most reputable ‘arrangers’ require separate legal representation for the surrogate so she can fully understand the legal issues involved with surrogacy. Surrogates receive the counsel of a highly qualified reproductive law attorney, who is as experienced in this area of law as the “rent her womb” people hire to represent them. The cost of legal representation is not at the expense of the surrogate.
    Also, contracts across the nation state surrogates are allowed to cancel their contract for ANY reason prior to starting medications other than birth control, but after starting medications it should be for a medical reason.
    There will always be those who don’t follow the higher standard of care, but that is a reason why any potential surrogate should make sure she does her due diligence, so she will be treated the way she deserves during the entire surrogacy.

    • Hi Narnie
      You seem really knowlegable on this topic thank you for taking the time to respond to what I wrote. I don’t know unless someone explains it to me right? So I have a question about you wrote.

      You said that
      “The cost of legal representation is not at the expense of the surrogate.”
      I think that goes right to the heart of what Julie mentioned and I went deep on. If the potential surrogate is not paying for her own attorney with her own money she cannot be assured of representation being truly without question in her favor because the attorney representing her is paid for by her client. Her client is her attorney’s client as well. Now you can go out on a limb and trust the attorney will still have the surrogates interests at heart but the person paying the attorney is the attorney’s client and they are the ones controlling things. I wonder what that does to attorney client privilege?

      I review contracts for enormous public design and construction projects for stuff just like this – where the owner wants us to manage other consultants that they are paying rather than allowing us to retain them ourselves. We end up taking the risk for their actions when we can’t control the process we don’t pay them, can’t fire them etc. On design build contracts which I hate more than anything, the contractor hires us and so our client is the contractor who pays us to inspect the work to protect the owner and of course anything we find wrong with the project never gets told to the owner and the owner gets a crappy job because he did not hire the architect directly he let the contractor pay for the architect. So if surrogacy is a business, and it is I can see this contractual arrangement playing out much the same way. We are licensed professionals who take our responsibility seriously and yet the person controlling the money does have control over our actions. So unless the surrogate takes her own money and hires her own attorney totally separate from and not recommended by the IP’s arranger or their attorney, she does not have representation she can count upon. She has to trust they won’t steer her wrong.

      • You can have independent representation without regard to who is paying for it. I might hire a lawyer, pay the lawyer and then tell the lawyer that that person’s job is to represent another. I know many lawyers who do this and they are quite serious about representing only the person who they are being paid to represnt. Their client is not the money person.

        This will work best if the money is paid up front, of course. But it really can work. You need good, strong, competent lawyers with a strong sense of ethical obligations. There needs to be clarity about whose job is what. While there are bad lawyers out there and greedy people, those stories are overrepresented in the public mind because they make better media tales. There are also plenty of people who understand that surrogacy can work, but only when it is done properly . Those people have no interest in having an unfit surrogate gulled into signing contracts. That will only bring trouble later.

        I agree, of course, that the surrogate must trust her lawyer. But I think it is quite possible to set it up so that she has a good lawyer that she can and will trust.

  3. i get so hurt when i’m thumbsed down.

  4. It’s in an IVF surrogacy clinic’s best interests to make sure everyone’s interests are protected – the intended parents; the surrogate; the child; and the clinic. We can create a win-win situation; and it’s important to do so beause this is not a single shot affair ! IVF clinics which look after their surrogates well get a good reputation, which allows them to attract more patients and more surrogates. This is why IVF clinics invest in getting good legal advise.

    Dr Aniruddha Malpani, MD
    Malpani Infertility Clinic, Jamuna Sagar, SBS Road, Colaba
    Bombay 400 005. India
    Tel: 91-22-22151065, 22151066, 2218 3270, 65527073

    Helping you to build your family !

    My Facebook page is at http://www.facebook.com/Dr.Malpani

    You can follow me on twitter at http://twitter.com/#!/drmalpani

    Watch our infertility cartoon film at http://www.ivfindia.com

    Read our book, How to Have a Baby – A Guide for the Infertile Couple,
    online at http://www.DrMalpani.com !

    Read my blog about improving the doctor-patient
    relationship at http://blog.drmalpani.com

  5. “It’s pretty clear to me, listening to the surrogates, that being a surrogate is a fine thing for some women. Not for all women–not by any means–but for some. These women are not exploited victims. They’re doing something they enjoy and they are being paid for it.”

    I can believe that. I just wonder how the children they carry will feel about it and how “fine” they’ll be after they’re separated at birth from the only person they know and need and trust.

    • I think that’s a really important question and I wonder about how much study there is on this. I also wonder about how open people are with their kids about the nature of the conception/pregnancy process. Do children born of a surrogate generally know that’s their origin? (As an aside, I’d bet a lot that children being raised by gay men who used a surrogate almost invariably know about the surrogate. What I really wonder about is children being raised by heterosexual couples.)

      And as with adoption and third-party gametes–there’s a broad range of post-birth practices in terms of content. Some surrogates maintain contact and have meaningful relationships with the children they bore. Others don’t. There’s another variable to consider.

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