Responsible Surrogacy

Information regarding the ethical aspects of the process

Another aspect to note is the surrogate’s right to apply to the courts in case she feels the contract has been breached on the part of the intended parents or a third party. Some surrogacy agreements are discriminatory when it comes to breaches of the agreement, imposing much more severe sanctions for breaches on the part of the surrogate than those imposed on parents. In addition, some surrogacy agreements deny the surrogate the right to plead in front of a court, either explicitly or implicitly, and some even state that the surrogate should transfer money to the parents if the court rules that they are to compensate her. Sometimes, the agreements limits the surrogacy’s right to transfer the contract to a third party (including a lawyer), and thus limits her ability to act in case of any violation. Such sections take unfair advantage of the unequal balance of power between the intended parents and the surrogate.

In this context, it is worthwhile noting that some of the contracts examined for this project contained clauses stating that any violation of any provision of the agreement shall be deemed a material breach, that entitles one of the parties to cancel the contract (as opposed to an immaterial breach that does not allow such cancellation). In practice, this passage states that even a small breach of the contract (for example a violation of one of the restrictions on the surrogate) may allow cancellation of the contract without liability on the part of the intended parents. Contract law in Israel, for example, prohibits these kinds of clauses – and if a similar article was brought in front of an Israeli judge, the decision would most likely be that it had no validity. It is also worth noting that no such restriction is layed upon the intended parents in the contracts examined.

Beyond the basic requirement of parents to obey the signed agreement, we highly recommend adopting a fair and balanced approach in relation to the duties of the two parties and the meaning of any breach of these obligations, and not to prevent the surrogate’s right to go to court if necessary.

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