Responsible Surrogacy

Information regarding the ethical aspects of the process

Some agencies do not pair a specific surrogate to the intended parents. In these agencies, there are in fact several surrogacy progresses initiated simultaneously. Several women go through embryos transfers and only when a fetus is implanted in the uterus of one of them, the specific surrogate is chosen and an agreement is prepared and signed between the parties. This situation, in which the surrogate signs the agreement only after becoming pregnant, raises difficulties in a number of contexts:

  1. Issues concerning the transfer attempts before pregnancy (such as medical treatment in preparation for the transfer) and issues regarding the beginning of pregnancy (such as medical treatment and nutrition during the first few weeks) are not agreed upon between the parties, despite the fact that there are requirements and restrictions on the surrogate even at this stage.
  2. Once in the pregnancy has begun,  the surrogate’s bargaining power in the process of drafting the contract is significantly reduced, since she probably would not want to stop the pregnancy¹. The surrogacy agreement is intended to clarify the terms of the procedure between the two parties, before the beginning of any medical process, when the parties have a real choice in the matter.
  3. The signed contract is between the surrogate who carries the pregnancy and the intended parents – but there are other women who underwent medical treatment in preparation for the IVF transfer, some of whom had unsuccessful embryo transfers. Without a signed agreement, they may not have received detailed information about the medical risks in the process and possibly did not even know that there are other women trying IVF transfers simultaneously and that not all of them will end the process successfully and receive full compensation. Additionally, there are no assurances for parents that these women actually receive any payment for the process, because no papers were signed.

Along with the advantages of a process that is not bound to a specific surrogate from the beginning (specifically, this practice shortens the waiting time between transfers in case there was no implantation in the first one), there are many limitations to such a process. Intended parents could try and think of possible solutions to the problem, such as the formulation of an appropriate legal document at the beginning of the process, referring to the early stages and includes a statement of intent regarding the issues that need to be reconciled when signing the final agreement. This document can also combine “red lines” set by the intended parents, so there will be little conflict after the pregnancy has initiated. Such a document can be signed between the Agency, the intended parents and potential surrogates at the beginning of the process, and should define some compensation to the women who will not carry the pregnancy. It should also clarify how to act if more than a single woman will become pregnant in simultaneous transfers. In any case, we advise confirming that potential surrogates are aware of the terms of the process and know that there are a number of women going through the process simultaneously.

These problems are reduced, of course, in agencies which pair the surrogate and the intended parents in the beginning of the process, before the transfers take place.

¹ – One can also argue that her bargaining power increased because parents do not want to stop the process that has already begun. However, it should be noted that the relationship between the surrogate and the intended parents is an asymmetrical one, because they are the ones who have more power and money in the process. Therefore, it is less likely that she would be the one to back down from a bad agreement.

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