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19Apr, 16

The American College of Obstetricians and Gynecologists’ Committee on Ethics has released an opinion “to provide an overview of gestational surrogacy and to describe the ethical responsibilities for obstetrician–gynecologists who take part in the care of women who participate in these arrangements.”

Gestational surrogacy is an increasingly common form of family building. However, as the Committee noted “… this treatment also involves ethical, medical, psychosocial, and legal complexities that must be taken into account to minimize risks of adverse outcomes for the gestational carrier, intended parent(s), and resulting children.”

The committee made a number of recommendations regarding best practices for medical professionals and potential gestational carriers and intended parents who are considering participating in gestational surrogacy arrangements.  

  1. Gestational carriers and intended parents should seek guidance from appropriately qualified legal counsel (i.e., experienced in third-party reproduction arrangements and licensed to practice in the relevant state or states).
  2. Gestational carriers and intended parents should be represented by separate and independent legal counsel.
  3. Separate and independent medical counseling to address pertinent medical risks, benefits, and alternatives.
  4. Potential gestational carriers “must be fully informed regarding the details of the treatment”
  5. Separate and independent mental health counseling.
  6. Intended parent(s) should receive counseling in anticipating issues surrounding disclosure of the pregnancy and the child’s genetic lineage.
  7. Gestational carriers should receive counseling in anticipating issues surrounding questions and concerns from family and community as well as potential attachment issues for the gestational carrier during pregnancy and after delivery.
  8. In an attempt to decrease potential conflict during pregnancy, gestational carriers and intended parents should discuss with the intended parent(s) as many foreseeable decision-making scenarios in pregnancy as possible,
  9. The plans for addressing decision-making in “specific scenarios” in pregnancy should be formally documented in the gestational surrogacy contract. Specific decision making scenarios include:
    • how many embryos to transfer during treatment;
    • how to proceed if a high-order pregnancy is conceived or a serious fetal anomaly is discovered;
    • what kind of prenatal testing will be sought; and
    • how parties will respond to an unexpected birth defect in the newborn.
  10. “It is recommended that every gestational surrogacy arrangement be documented by a signed, written preconception agreement in which all parties participate voluntarily, transparently, and in good faith.”
  11. The arrangement should be completed prior to conception.
  12. The surrogacy arrangement should “clarify what medical information may be shared between the intended parent(s) and the gestational carrier and what information is to remain confidential.”
  13. The arrangement should address “how appropriate medical details related to the health of the fetus will be communicated to the intended parent(s) during the pregnancy.”
  14. The parties must remember that the physician’s responsibility is to the patient, without regard to the terms of the surrogacy arrangement. “Regardless of the contractual details, however, the pregnant gestational carrier is the only one empowered and enabled to make independent decisions regarding any screening, testing, or procedure that may be indicated during her pregnancy.
  15. Establish who will make decisions regarding care of the newborn from the time of delivery prior to any prebirth orders establish parentage of the newborn.
  16. Gestational carriers and intended parents considering cross border reproductive care should also seek legal advice from appropriately qualified legal counsel experienced in cross-border gestational carrier arrangements because “cross-border reproductive care is particularly fraught with ethical and legal challenges and involves obstacles to ensuring optimal medical safety, preventing undue inducement of gestational carriers, and establishing parentage and citizenship status for offspring.

As the committee observed, in the United States, the law surrounding surrogate parenting arrangements is determined primarily at the state level. Some states have formal laws governing surrogacy. Others, like North Carolina, do not. Statutes, where they do exist, range from prohibition of contracts and imposition of criminal penalties to specific authorization pursuant to a detailed regulatory structure. Case law from a state may support this practice, but procedural issues regarding contracts and parentage “may be less well defined” or simply not exist in any formal structure.

The Committee’s recommendations are a good starting point for potential gestational carriers and intended parents trying to minimize risks of adverse outcomes. That is where lawyers can be most helpful.

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