What Happens if the Surrogate Changes Her Mind?
By
Steven H. Snyder, Esq.
When a person enters into a surrogacy agreement with a potential surrogate, the intent of the parties should be clearly expressed in the terms of a well-drafted surrogacy agreement. Typically, the surrogate intends to become pregnant with a child that is genetically related to at least one of the intended parents but not genetically related to her and, after the baby is born, cooperate with establishing the intended parents as the sole legal parents of the child. The intended parent intends to contribute genetic material (egg and/or sperm) to the surrogate's pregnancy and receive sole legal custody of and responsibility for the child after the birth. As long as both parties are true to their initial cooperative intent, everything goes very smoothly, but what happens if one of the parties changes his or her mind? First, let's accurately assess the likelihood that either party will actually change his or her mind, and then let's evaluate what may happen when that occurs.
The single most frequently asked question that I hear from people when I discuss surrogacy programs is, "What happens if the surrogate changes her mind?" This question is on the tip of everyone's tongue because in 1985, the New Jersey courts were first faced with the now famous Baby M case (In re Baby M, 537 A.2d 1227(N.J. 1988)). Baby M highlighted and brought to national attention the legal and moral challenges presented when a surrogate does change her mind and wants to keep the baby. Because of Baby M and the numerous sensationalized made-for-T.V. movies about surrogacy that followed it, most people still believe that most surrogates have a difficult time delivering the child to the intended parents as required by the surrogacy agreement; however, this is not actually true.
Baby M is not representative of the actual risk that a surrogate may change her mind for two reasons. The first reason is that Baby M had unique facts that separate it from most other surrogacy arrangements. For example, the surrogate failed her psychological screening, but the intended parents used her anyway. To complicate this already risky situation, the surrogate was artificially inseminated, so she was the child's genetic mother. These facts alone made the resulting litigation over custody of the child inevitable in that isolated case. The second reason that Baby M is not representative is that current medical, legal, and agency practices in effecting surrogacy arrangements have improved (partially in response to Baby M) to minimize the likelihood of any dispute between the parties. For example, psychological screenings are more thorough, and the results are never ignored as they were in Baby M. In addition, the vast majority of surrogacies are now done through in vitro fertilization using the intended mother's or a donor's egg, so the surrogate is not genetically related to the child. There is also a larger body of legal precedent in certain states affirming surrogacy arrangements under such circumstances, so courts are more educated and supportive of the practice. Finally, there are more responsible surrogacy agencies available to intended parents that recruit, thoroughly screen, and only match suitable surrogates with appropriate intended parents. These agencies also carefully administer the surrogacy programs from start to finish in ways that are designed to avoid conflicts between the parties. For all of these reasons, the common perception that surrogates will inevitably want to keep the child is simply not true.
As I discussed in my first article in this series, of approximately 15,000 surrogacy arrangements that were reported through 2002, only 88 resulted in any dispute between parties. (That's an overall dispute rate of only approximately one-half of one percent, or .005.) The surprising part of this statistic is that only 23 of the disputes involved a surrogate who wanted to change her mind, while 65 involved an intended parent who wanted to change his or her mind. These informal statistics support the accuracy of the foregoing discussion. They also draw attention to the fact that a complete surrogacy agreement must contemplate not only what happens if a surrogate changes her mind; it must also contemplate what happens if an intended parent changes his or her mind.
The legal answer as to what a court will do if a surrogate or intended parent changes his or her mind varies from state to state depending on the individual statutes and case law (court decisions) of each state. Thus, there may be 50 different answers to that question, and such a discussion is beyond the scope of this article. This legal analysis of a particular state's law, however, should be thoroughly completed and considered before you enter into a surrogacy agreement with any individual surrogate. The analysis should be made of the specific laws of the state in which the surrogate resides with the assistance and advice of an attorney licensed to practice in that state and experienced in surrogacy matters.
The contractual answer as to what will happen if either party changes his or her mind about the agreement is much more straightforward. The express terms of the surrogacy agreement as to what happens if either party breaches the agreement are well within the control of the respective parties and their separate attorneys. First, the parties must determine what actions constitute a breach of the agreement. Second, they must decide which available procedural forums (court, arbitration, mediation, etc.) will govern any such dispute. Finally, they must decide what each party's contractual remedies will be upon certain types of breach by the other.
A breach of an agreement occurs anytime an obligation under the agreement is not fulfilled or an express representation or warranty by a party regarding the party's history or circumstances is untrue. The obvious example of a surrogate's breach of a surrogacy agreement would be the surrogate's failure to give the child to the intended parent(s) as intended (failure to cooperate with the necessary parentage proceedings after birth). Conversely, the intended parents would breach the agreement if they refused to receive sole custody of and responsibility for any and all children born as a result of the agreement, no matter how many there were or in what kind of health they were. Other examples of breaches by the respective parties might include (i) the surrogate's voluntary termination of the pregnancy without cause or the consent of the intended parents, (ii) the surrogate's refusal to abort a physiologically abnormal child pursuant to the recommendation of the attending physician and request of the intended parents, (iii) genetic relationship of the child to the surrogate and/or her spouse or other sexual partner and not to the intended parent(s), (iv) the surrogate's refusal to identify any of her sexual partners for blood and/or paternity testing, (v) the surrogate's failure to follow any restrictions on her behavior during the pregnancy as set forth in the agreement (i.e.-no consumption of alcohol, drugs, smoking, etc.), (vi) failure of the intended parents to pay for all surrogacy-related fees and expenses as listed in and required by the surrogacy agreement, and (vii) either party's knowing falsification or omission of material information as summarized in or relevant to the agreement.
Selecting and agreeing in advance on the procedural dispute resolution mechanisms available to the parties in the event of a breach is also important. If either party breaches the agreement, it may be in everyone's best interests, especially the resulting child's, to require informal, open, and cooperative discussion and mediation of any disputes with the assistance of a mutually-selected third party such as a professional mediator, licensed psychological counselor, ordained minister, or other professional. Making this a prerequisite before either party can proceed to formal court proceedings may result in a more amicable resolution of disputed issues and reduce the likelihood that either party will try to back out of the agreement entirely. If such informal dispute resolution fails, then either party retains the right to proceed to formal court proceedings, if necessary.
If the parties reach no informal agreement, the parties can still seek various remedies upon litigation of their dispute. Either party could seek to specifically enforce the agreement. In other words, they would ask the court to force the non-complying party to follow through with the original intent of the agreement as the agreement was drafted and signed. For example, the intended parents could ask the court to force the surrogate to deliver the child to them as intended, or the surrogate could ask the court to force the intended parents to receive the child as intended. In the alternative, either party could ask the court to terminate the agreement and leave the child in the custody of the surrogate. If this remedy were based on the surrogate's breach of the agreement (i.e.-the child is related to the surrogate and her spouse and not the intended parents), the parties would state that the intended parents would bear no financial or other legal responsibility for the child. If this remedy were based on the intended parent's breach (i.e.-failure to accept custody of a handicapped child), the parties would state that the intended parent would remain financially and legally responsible for the child even though the child remained in the surrogate's custody. Another remedy available to the parties would be to ask the court to implement a shared parenting arrangement, settling such issues as parenting time and child support according to the state's applicable child custody laws. Finally, even if the child is not genetically related to the intended parents as intended, the intended parents may want to keep available to them the remedy to adopt the child if the surrogate consents to and cooperates in the adoption proceeding.
The contractual procedures and remedies upon the breach of a surrogacy agreement as set forth above are, of course, only as enforceable as the agreement itself. Even if the parties include specific language as to what constitutes a breach of the agreement and what procedures and remedies are available to the parties upon a breach, if a court decides that the agreement is, itself, unenforceable, none of these provisions may take effect. In some states, this issue has already been decided affirmatively or negatively. In others, there has been no litigation completed or law passed to predict whether such agreements would be enforceable. This is the case in Minnesota. This underscores the necessity of discussing all of the factors that govern such agreements with an experienced attorney in the state of the surrogate's residence. Notwithstanding the facts that the dispute ratio in surrogacy matters is very low and that hundreds of surrogacies are successfully concluded each year in many different states, some cases do, indeed, result in disputes. Therefore, it is imperative that you know what rules will or will not govern a party's breach of the agreement before you even enter into it.
(This article is not intended as legal advice and should not be relied upon as such. Each family and agreement is unique, so you should hire a competent attorney to advise you specifically about your particular case.)
Mr. Snyder is an attorney experienced in assisted reproduction and surrogacy law. You may contact him at:
Steven H. Snyder, Esq.
Steven H. Snyder & Associates,
Attorneys at Law
11270 86th Ave N
Maple Grove, Minnesota 55369-4510
763-420-6700
steve@snyderlawfirm.com
Copyright © 2004 by Law Office Steven H. Snyder. All rights reserved.
