Reaction to New York Times Article on Surrogacy

Posted On December 13th, 2009

Today’s New York Times article (“Building a Baby, with Few Ground Rules“) describes cases that went wrong, even though it mentions in passing that most surrogacies work out just fine. I hope it does not discourage intended parents from pursuing surrogacy, or just make surrogacy appear unseemly in the eyes of the general public.

The Michigan and Indiana cases discussed did not follow the proper legal or medical protocols at all; in fact, the egregiousness is stunning. These surrogacy cases should have never happened in the first place. Michigan is one of the few states hostile to surrogacy and we, or any legitimate agency, would never allow a surrogacy to take place there. All the clinics we work with have very strict protocols in place for medical and psychological screening; the single man from New Jersey would have never even made it into our program (as we are careful about the intended parents we work with), let alone pass the psychological screening that would take place at the clinic.

The article mentions that the American College of Obstectricians and Gynecologists recommends that “surrogacies be handled by nonprofit agencies,” but I am unaware of any such agencies with the legal experience to handle such complicated arrangements.

The field of surrogacy (and assisted reproduction in general) is not as unregulated as commonly perceived.  In fact, there is case law and/or statutes in a number of US states, where surrogacy can be practiced legally and safely (see our article, “Assisted Reproductive Technology: Egg Donation and Surrogacy in Law and Practice,” in the Bloomberg Corporate Law Journal, for more specific information).  The source for laws or precedent governing any arrangement is the state where the baby will be born, since that is the state that issues the birth certificate and where parental rights are extinguished and established. So there should be prior procedures to at least draw from in the carrier’s home state; if any contractual performance (or birth) is to take place in other states, the laws in those states should be examined carefully as well.

It is true that issues of custody are clearer when both intended parents contribute genetic material. When fifty or one hundred per cent donor material is used, it is especially important for the intended parents to be screened by clinical professionals.

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