Gestational Carriers: The Wild Frontier

I recently represented a married couple who wanted to adopt a child soon to be born to a gestational carrier, and who stepped in when the relationship between the carrier and the intended parents of the child drastically went wrong. The gestational carrier had been implanted with an egg fertilized with the intended father’s sperm, but that was not from the intended mother; a fact that was not initially disclosed and was not revealed until well into the pregnancy.

Neither party was represented by attorneys when they entered into their contract; a contract they had pulled off of the internet. The contract contained numerous problematic provisions, and was rife with unrealistic and questionable terms. The intended parents were from a state that did not allow gestational carrier contracts, so the contract called for the law of a state that does recognize such contracts to apply (“choice of law state”). It also recited that that state was where the contract was executed. However, the gestational carrier was not from that state either, meaning that, when push came to shove, the courts may have been hesitant to accept the contract’s choice of law provision.

The central issue in the case, however, was that the contract provided that the gestational carrier would abort the pregnancy if the treating physician determined her life was in danger, or if the fetus had severe abnormalities. The contract also provided that, upon birth, regardless of the child’s condition, the intended parents would take custody of the child, assume all parental rights, and assume the exclusive responsibility to care for the child.

During the pregnancy, it was discovered that the fetus had severe abnormalities and the intended parents demanded that the gestational carrier abort the fetus. The gestational carrier refused. In response, the intended parents refused to honor other terms of the agreement, leaving the gestational carrier without health insurance, and funds for medical costs and living expenses. The intended parents also said that they would not parent the child, but instead would turn the child over to the state. The gestational carrier relocated to a state that does not recognize gestational carrier agreements (“relocation state”) and found a family with success adopting other “special needs” children, and who were eager to adopt the expected child.

Petitions were filed in both the choice of law state and in the relocation state. The choice of law state was asked to declare the intended parents the legal parents and issue a pre-birth order to that effect.  Ultimately, no court orders were necessary. The intended parents eventually conceded that the best interests of the child would be served by allowing the family who wanted this child, to adopt.

An important lesson to be learned here: if you are considering being a gestational carrier, or building your family with this approach, be careful, consult a reputable agency that screens and qualifies the carriers and the intended parent, and talk to competent counsel, including fellows of the American Academy of Assisted Reproductive Technology Attorneys (www.aaarta.org).

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