Frozen embryos. Donated sperm. Surrogate motherhood. In vitro fertilization.
The options abound for couples and single people who want to have children but can’t do it on their own without some kind of medical help.
But experts say that advances in assisted reproductive technology have outpaced many of the laws in the United States governing how these methods should be used.
This has left the courts to intervene when emotional and ethical issues come up.
High-Profile Cases Grab Media Attention
While a handful of high-profile surrogacy cases hold the media’s attention, many more have relatively happy endings.
“Most [gestational surrogacy] arrangements result in a healthy baby,” said Melissa Brisman, a reproductive lawyer and owner of the surrogate agency Reproductive Possibilities, in an interview with Healthline. “I personally think it’s a shame that the bad cases are the ones brought to light and you don’t see as many of the wonderful cases.”
According to the Society for Assisted Reproductive Technology, in 2011 there were 1,593 babies born in the U.S. to gestational surrogates. This is an arrangement in which a woman — a surrogate — carries a baby she is not genetically related to.
In traditional surrogacy, the egg does come from the surrogate, making her genetically related to the baby.
In one of these cases, a lawsuit was filed this month in California by a 47-year-old surrogate mother who was asked by the intended father to abort one of the triplets she is carrying because he only wanted twins.
The woman, Melissa Cook, refused. Her lawsuit states that she is the legal mother of the triplets and that she will seek custody of one of the children. According to the single man’s lawyer, he now intends to claim parental rights for all three children.
Late last year, “The View” co-host Sherri Shepherd, sought to avoid parental responsibilities for a surrogate son that she and her husband agreed to have while they were married.
Shepherd filed for divorce from her husband when their surrogate was seven months pregnant. Shepherd’s egg was not used in the pregnancy, but a Pennsylvania court ruled that she was legally the boy’s mother.
As a result, her name was added to the birth certificate. Shepherd is required to pay child support to her ex-husband, who has full custody of the boy. Shepherd is reportedly appealing the decision to the Pennsylvania Supreme Court.
Concerns Over Surrogate’s Control of Her Body
One concern raised in the Cook case relates to how much control a surrogate has over her own body, which she has essentially “rented” to carry the babies for another person.
In the Cook case, if the father’s demand to abort one of the fetuses was allowed by the courts, it would mean the woman would be forced to undergo a medical procedure against her wishes.
But experts say that is unlikely.
“Everyone has control over their body in the United States,” Brisman said. “So you can’t force anybody to do something with their body that they don’t want to do.”
This is true even in cases where the surrogate and parents had a prior agreement to reduce one fetus if three are successfully implanted, or to abort the pregnancy if the fetus has a genetic defect.
But the parent or parents can still seek monetary compensation if the surrogate breaks the terms of the contract.
“The courts could say, ‘OK, you don’t have to do that, but you have to pay damages since you agreed to it,’” Brisman said.
Little Regulation of Surrogacy
What makes many of these cases high-profile is that they are sorted out in the courts after-the-fact — when a surrogate is several months pregnant or even after the baby is born.
This may be the result of many factors. Part of it, though, is the lack of laws guiding the process of surrogacy from the start.
“The U.S. is sort of known as the Wild West of reproductive medicine because we have so little regulation, compared to other countries,” said Susan Markens, an associate professor of sociology at Lehman College and author of “Surrogate Motherhood and the Politics of Reproduction.” “But that’s also one of the reasons why there are often these news stories — what I call the ‘horror stories.’”
It’s not a complete regulatory wasteland, though.
Professional medical organizations — such as the American Society for Reproductive Medicine — offer some guidance on best practices for certain areas of assisted reproductive technology.
This includes guidelines on how many embryos to transfer into a woman and the risks involved with pregnancies in women over the age of 40.
But in the case of gestational surrogacy, agencies that handle these arrangements set their own rules, with no oversight.
“My agency is out there operating under certain rules that we think are ethical, but I’m making those rules,” Brisman said.
She admits that her agency would have handled the situation with Melissa Cook differently.
She is concerned that having a 47-year-old woman as the surrogate mother, along with three embryos implanted, increases the health risks of the mother and the unborn babies. But she also thinks that the surrogate and intended parent should have had more contact from the start.
In spite of that, there’s nothing to stop other agencies from doing things exactly as they were done.
“There’s nothing illegal about what they did,” said Brisman, “but it’s bad form to do it in the manner in which they did it and, unfortunately, it resulted in a bad case.”
Lack of Laws Shifts Decisions to Consumer
Another problem with surrogacy, both traditional and gestational, is that the laws among states vary widely.
Some states, such as California and New Hampshire, permit and regulate surrogacy arrangements. But Michigan and New York do not allow them at all. And in some states, people who undertake these agreements may be subject to fines or jail time.
“What laws there are — for instance with surrogacy and egg donation and sperm donation — happen by states,” Markens said. “You really need to be on top of the laws in each state. It can really vary.”
This shortage of laws shifts the burden of decision-making onto would-be parent or parents — and the surrogate — especially in cases where they don’t do enough research beforehand or work through a surrogate agency.
“The consumer is the one who is losing out,” Brisman said. “A 47-year-old woman and a single man shouldn’t be the ones who are responsible for knowing that it’s not safe to put three embryos in. That should be a doctor’s responsibility to know that that’s not safe.”
Despite the lack of legislation, many surrogacies go through smoothly.
The cases that go wrong “are really the minority,” Brisman said. “The bigger problem is really traditional surrogacy, where it’s her egg.”
Because the surrogate in a traditional surrogacy is genetically related to the baby, she has an even stronger legal case to take custody of the child after it is born.
Gay men or single men can also become fathers through surrogacy arrangements. In many cases, surrogacy laws apply the same way to same-sex couples as they do to heterosexual couples or single parents — for better or for worse.
Planning Can Minimize Issues
Although many people are calling for stronger regulation of surrogacy, that alone may not prevent any further issues.
“Often when there are problems,” Markens said, “it seems that people did the contract on their own or didn’t do things they should have.”
It may cost more to work through an agency, but this can minimize problems later on. Of course, with the right amount of research, people can still proceed alone.
Brisman’s two children — who are going to be 18 in a few weeks — are both the result of a surrogacy that she and her husband worked out on their own.
“I did the best that I could,” Brisman said, but “there are basic things that if you did your research — even back then — you would know were prudent.”
This included in-person meetings with the surrogates, having a psychologist meet with all people involved, and setting up an independent trust account prior to the arrangement to pay the surrogate.
These are all things that she recommends to her clients — prospective parents wanting to work with a surrogate.
“You don’t want to skimp on the professionals,” Brisman said. “You want the background checks and the psychology and the legal for everybody.”
Planning ahead is also important in cases of in vitro fertilization (IVF), especially when you consider cases of divorced or separated couples battling over frozen embryos.
When couples prepare for IVF, several of a woman’s eggs are fertilized using a man’s sperm. If the eggs or sperm are donated, there may be less of an issue after divorce.
However, if the embryos are both genetically related to the intended parents, it raises questions of whether or not the embryos can be used in a pregnancy after the divorce. In some cases, the woman can only have children using those frozen embryos, which raises the stakes even more.
“I think it would be very foolish for anybody to consider going into this territory without a contingency plan, without a well thought out agreement,” Todd Spodek, an attorney in New York City, told Healthline. “It can really turn into a horrific situation, where one party is having the biological children of the other without their consent.”
These agreements, when completed with the help of a lawyer, can be quite detailed. They may outline how the frozen embryos can be used if the couple stays together or gets divorced, who pays the cost of keeping the eggs frozen, where the eggs will be stored, and other possibilities.
Spodek has even included this kind of contract as part of a prenuptial agreement for a couple that had already started IVF before they were married.
Many IVF clinics include these questions in their consent forms, but some lawyers question whether these forms are a good substitute for consulting with an attorney.
Similar agreements can be created in cases of sperm or egg donation.
Planning ahead can reduce the risk of a surrogacy turning into one of the “horror stories,” but it will never completely eliminate the possibility.
“You always have the risk, even if everything is done right,” Brisman said. “To me, the biggest risk in a surrogacy is that somebody’s going to have a change of heart on a medical procedure.”
This may occur when something happens to the surrogate’s family, such as the death of a child or her spouse losing a job. But it can also happen when the intended parents divorce, as in the case of Shepherd.
Or it can happen through the stress of carrying a baby for strangers, or having a stranger carry your baby, for nine months.
Many times, though, all the planning and research, and stress and money that people invest in surrogacy produces the outcome everyone is looking for — a healthy baby or babies.
“I’ve done over 2,000 arrangements,” said Brisman, “and I have not had a carrier who refused to do something that she initially agreed to.”