Bio Ethics – Group Essay

The Ethical Complications to Surrogacy and How PA’s Can Facilitate it.

By: Mosammat Alam, Lingqiao Chen, Daniel Crosby, Tiffany Liang, and Sophia Lobo HPPA 514: Biomedical Ethics
Prof. Bridget McGarry
July 14, 2021

Introduction

Surrogacy has become a popular option for the LGBTQ community and families facing infertility or other conception related issues. While it provides a solution to many, the key issues arise from the lack of centralized guidelines that dictate these practices and the role of the physician in moderating these situations. Oftentimes, problems arise when individuals involved either break their contract or come across an issue not previously addressed in their contracts. The laws for surrogacy vary by state, with many having little to no guidelines to monitor these procedures. New York, for instance, has legalized and set specific guidelines on gestational surrogacy as recently as February 2021 (“The Child-Parent Security Act: Gestational Surrogacy”). What we propose is a more centralized system to facilitate surrogate practices, based on medical collaboration with legal protocols to guide the interest of the intended parents, surrogate, and fetus.

Standardized Screening Process & Care – A Medicine Centered Approach

The first step to starting the surrogacy process is finding a suitable surrogate mother. Some families already have a personal connection while others may use a surrogacy agency. Currently, surrogacy agencies exist as full or partial-service establishments. A full-service agency is responsible for the screening, matching, delivery, and return-to-home plans with legal and clinical coordinations. A partial-service agency provides only some of these services with less step-by-step guidance (Mello, 2019). The main complication with these varying pathways to finding a surrogate mother is a disjunctive process with no central oversight. There is a lack of protocol in determining if a surrogate mother is suitable for carrying a baby to full-term and delivery. Furthermore, over ten percent of gestational surrogates are not properly informed of the risk of multiple pregnancies and the demands on their body (White, 2017). This presents with the issue of a lack of informed consent by both the surrogate mother and intended parents before proceeding with the contract. For this reason, the medical community can play a crucial role in developing a standardized screening plan for potential surrogacy mothers.

A thorough medical screening process should be implemented before a surrogate mother is cleared to carry a child to minimize health complications and provide concise documentation in case of legal ramifications as seen in Johnson vs. Calvert lawsuit of Orange County. In this case, the couple sued the surrogate mother for concealing pregnancy complications that included several miscarriages and alleged that the agency failed to perform a proper background check of the mother (NeJaime, 2017). There are two sides to this case. First, the agency failed to conduct a thorough background check and standardized screening tests to ensure that the mother was healthy to proceed. Second, the lack of documentation of health status failed to protect the surrogate mother and agency in the event that they are sued on an unfounded basis.

To better protect the legal rights of the surrogate mother, health of the fetus, and expectations of the intended parents, a standardized screening process should consist of a mental health status exam and complete physical exam. A thorough past medical and social history should also be obtained and documented. This would ensure that the mother is in full mental and physical status to proceed with the pregnancy and has the capacity to comply with healthy practices. Ultimately, the medical provider holds the responsibility to ensure that these screening tests are performed. A physician should not perform implantation until the documentation of a completed screening test is provided.

Creating Uniform Federal Guidelines

As surrogacy presents with such intricate and personal matters and inevitable complications, we must turn to laws and regulations to resolve them. Unfortunately, the laws guiding the process are not always clear cut and currently vary among agencies, states, and countries. This makes it even harder to maneuver the various roadblocks that may occur.

In the United States, surrogacy laws are determined at the state level. In “Green Light” states, such as California and Connecticut, surrogacy is permitted for all parents, pre-birth orders are permissible, and the names of both parents are included on the birth certificate. “Yellow Light ” states such as Tennessee and Idaho, allow surrogacy, but present with legal limitations. For example, in Indiana, another yellow light state, surrogacy contracts are not enforceable but some courts have granted pre-birth orders for intended parents, which establish the intended parents as the baby’s legal parents (Trolice, et al., 2019). Lastly, “Red Light” states such as Michigan and Louisiana completely prohibit compensated surrogacy, only allow altruistic surrogacies, and deem anything beyond those limits a criminal offense. For instance, intended parents in Michigan can be fined up to $50,000 and imposed a penalty of up to one year imprisonment. Surrogacy arrangements are so restricted in Louisiana that it is limited to married heterosexual couples (Gonzalez, 2019).

Because the surrogacy industry is still relatively new, many U.S. laws have room for improvement and must keep up with other ongoing advancements in medicine. There are a number of factors and variables that can complicate surrogacy law, so it is extremely important to work with an assisted reproduction attorney in the state where surrogacy is taking place (Radcliff, 2019). Currently, the absence of federal surrogacy laws and competing views can impede transparency and obscure predictability. The establishment of federal regulations with medical committee advice can oversee surrogate agencies, offering clearer and more consistent guidance to the legal and medical terrains of surrogacy.

Rights of the Intended Parents

To further complicate matters, there is a difference between traditional and gestational surrogacy. In traditional surrogacy, the surrogate mother is artificially inseminated with the sperm of the intended father. In gestational surrogacy, a fertilized embryo of the intended parents is implanted in the surrogate mother. The child is not genetically related to the surrogate mother. This is a legally complex process that is carried out based on the contract between the intended parents and the surrogate to define the difference between legal and biological parents.

The contract lists out the roles and responsibilities of each party involved in the surrogate process and outlines the expected behavior of the surrogate during pregnancy. In the event where the surrogate mother violates the agreement, the obstetrician faces the dilemma of whether to disclose the information to the intended parents or not (Daar, 2014). During the course of treatment, the clinician may learn previously unrevealed medical history about the surrogate, the surrogate’s intention to keep the resulting child, or dangerous behaviors like tobacco or alcohol use. Dr. Daar described the dilemma as between “the duty to obtain informed consent and the duty to maintain patient confidentiality.”

First, it is strongly recommended that the surrogate and the intended parents see different clinicians to avoid overlapping patient-physician relationships. This will avoid conflict of interest so that both parties are cared for in their best interests. Next, the use of a written agreement is necessary to resolve any conflict. Disclosure is permitted if the surrogate waived her right to confidentiality. Most surrogate contracts require surrogates to waive certain HIPAA rights to reassure the intended parents that the child is healthy throughout the pregnancy.

If there is a breach in contract, the clinician would ideally encourage the surrogate to discuss the breach with the intended parents. If the surrogate refuses and the agreement does not include a waiver of confidentiality, the clinician should weigh the harm and benefit of revealing the information. The intended parents are genetically related to the fetus and are ultimately responsible for the outcome of the pregnancy. Therefore, protecting the patient’s confidentiality may cause potential harm to the baby as well as the intended parents. Nonconsensual disclosure should be justified to obtain informed consent and to avoid harm.

Rights of the Surrogate

A written legal contract between the surrogate mother and intended parents becomes especially imperative if disagreements should arise on the decision for abortion. Difficult as these scenarios may be for traditional biological parents, the potential for conflict increases in cases of surrogacy. From the perspective of the surrogate mother, she has to go through many lifestyle changes in caring for her fetus, such as avoiding certain fish, tobacco and alcohol as well as modifying her daily activities. After nine months of this, she then has to emotionally detach herself from the child after delivery. While all this may be previously agreed upon, it does not account for everything. And none of this strips the surrogate of certain basic rights, such as the autonomous right to her body and her own gametal development.

As many intended parents will have a financial interest in achieving a pregnancy on the first attempt, the process of multiple embryo implantation is common in order to increase the odds of just that. Multiple implantations introduce greater chances of a multiple fetus pregnancy, resulting in potential conflicts between surrogate and parents. Multiple gestation comes with increased risks for both the fetuses and the mother carrying them. Additionally, if the surrogate happens to carry twins or triplets, the parents may insist on what is called “fetal reduction,” the process of terminating one or more fetuses with the intention of increasing the odds of a viable pregnancy. With this comes the risk of psychological distress to the surrogate as well as the potential for a complete termination of pregnancy (Tanderup et al., 2015).

In a high-profile case of 2016, surrogate Melissa Cook refused the requests of the commissioning parents to abort one of her triplets. The surrogate mother decided she wished to deliver and seek custody of that triplet, defying the authority of the future parents (as per the contract) along with their concerns over the risks of carrying all three to term (O’Reilly, 2016). With stipulations of binding contracts involved, financial and legal concerns may complicate the counseling of patients who are weighing options in an already stressful situation. Ultimately, the risks of carrying multiple gestations and the surrogate mother’s autonomous rights to her body must be evaluated before coming to a definitive conclusion. Another case that arose in 2017 speaks of a California-based surrogate mother who did not “have sexual intercourse from the first day of her menstrual cycle before the embryo transfer until the date that pregnancy has been confirmed by the IVF Physician” still went on to conceive a second child in a process of superfetation (NeJaime, 2017). In such rare cases, having the definite and autonomous right to one’s body through the different states helps streamline the custody battle and process. Allen should have had full right to conduct her life as planned despite entering a surrogacy contract.

As a medical provider in situations such as this, our consideration of a patient’s autonomy, goal of beneficence toward that patient, and respect for the legally documented wishes of the parents are all in play. The aim of informed consent is not so clear when a medical decision, traditionally made by one party, has been fractured into two. The health of a patient can take primacy over contractual disagreements, however, efforts should be made to establish this consent with the patient as well as to communicate effectively all of the risks and benefits to both parties so that decisions can be made sensibly and amicably. In instances of surrogacy, our ability to communicate clearly and consistently among multiple parties is crucial.

Rights of the Fetus

In all the debate about surrogate mother and the intended parents rights, one important factor we seem to overlook is the rights of the fetus or resulting child. As someone who is unable to speak their mind at the time the contracts are drafted, the fetus is both vulnerable and dependent on the decisions of a proxy (Rafique and DeCherney, 2014). Under normal circumstances that proxy would be the intended parents who have a vested emotional and psychological interest in the wellbeing of the child. However, multiple cases have arisen that put that proxy status in question and beg the need for a third party proxy. This third party proxy may be taken on by a physician so that the health and safety of the surrogate mother and fetus are prioritized.

As previously stated, abortion or pregnancy reduction procedures are often common in gestational surrogates where multiple implantations may overburden the parents. We know that in entering a surrogacy agreement, both parties want to produce a healthy and viable child. Then if the health of the child or the surrogate mother is not a contention, can abortion or reduction still be an ethical option? What if the intended parents change their minds half way through the pregnancy and wish to abort?

Furthermore, in a normal pregnancy the mother’s health is paramount, fetal health is therefore dependent on the mother who has a shared interest. In case of gestational surrogacy, the surrogate has no gametal involvement or interest in the resulting child, creating a paradigm of two separate patients that the obstetrician must cater to (Horner and Burcher, 2021). A third proxy physician may step in to conclude that although the surrogate mother does not have genetic ties to the child, the health of her body ensures the survival of the child.

With multiparity fetuses normally detected between 11-14 weeks of gestation (Bora, et al 2008), the decision to abort or reduce comes after significant emotional involvement of both parties in the contract. At such a time, a third party proxy or physician could be a valuable resource in addressing: the need for a fetal health advocate, a council for the surrogate and guide the intended parents decision.

Conclusion

Surrogacy is a delicate, yet complex topic that requires a significant amount of time to discuss and prepare for. Emotional, financial, medical, ethical and legal aspects contribute to the decision and continue to play a role throughout the journey and beyond. With so many moving parts, the need for standardized legal and medical guidance is important in ensuring a smooth transition and optimal care for all parties involved. A standardized system that can address the autonomy and nonmaleficence nature of care given to the surrogate, the justifiable right of all intended parents to surrogacy, and the dual role of beneficence in caring for both surrogate and fetus. It is because of this that we support a more physician-involved central guide to advocate for the ethical health rights of all parties involved in the surrogacy process.

References:

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