Arbitrated Pregnancies (September 2018)

Gestational surrogacy is stressful business. Here’s a lawyer discussing one of her surrogacy clients: “[The surrogate mother had] to be available 24-7. If she didn’t return a phone call within an hour, he freaked out. Towards the last trimester [she] was so at her wit’s end … [a]nd he’s also one of those where he’s very wealthy, so it’s kind of like, ‘I’ll just pay you more money if you up about it.’ And it’s like, okay, at a certain point, that just doesn’t work anymore. [1]” Forget about happiness, money can’t even buy a stress-free surrogacy experience.

Paying a surrogate to carry a fetus shoehorns a fourth (and fifth) party into the otherwise tight therapeutic triangle formed by biological mom, fetus and doctor. It’s not always a snug fit. The thorny deontological questions that obstetricians wrestle with in a traditional pregnancy — how, exactly, should the needs of mom and the fetus be weighed against each other? — are made messier by the wishes and anxieties of another set of parents who everyone agrees have a vested interested in the baby’s health, and paid a hefty sum for the privilege. Three’s company, but five is definitely a crowd.

Not content to remain on the sidelines, intended parents routinely try to influence the proceedings by insisting on behavioral restrictions in surrogacy agreements. The terms can range from mild (monthly visits with the OB-GYN) to draconian (24-7, nanny cam-style surveillance), but either way are almost always the product of a lopsided negotiation — if there even was a negotiation; after all, only one of the parties has tens of thousands of dollars to spend on surrogacy fees and fancy lawyers. In any event, even if the terms weren’t reached under duress, they’re still necessarily an imposition on the surrogate; at very least they’re another set of hurdles to be cleared during mom’s nine-month marathon. The extra stress might as well be written directly into the contract.

The trouble is that a pregnancy is basically the worst time for additional stress. Despite being healthy women specifically selected to carry a fetus, surrogates suffer astronomical rates of placental abruption, a condition that is inextricably linked to maternal hypertension; by some estimates the incidence of abruption is close to 5 times higher among surrogates [2] (it affects about 0.5% of the general population [3]). The link hasn’t been thoroughly investigated yet, but even the lawyers wouldn’t argue that hyper-detailed surrogacy contracts are lowering mom’s blood pressure.

Beyond that, oftentimes these contracts don’t remotely resemble evidence-based best practices. For one thing, if constant surveillance truly produced healthier newborns gynecologists would act a lot more like private investigators. Plus, even the behavioral restrictions can have flimsy medical justification. The legal scholar Hillary Berk, for instance, has uncovered cases where the surrogate was contractually barred from getting a pedicure. That’s tough to understand. It’s not just that pedicures and the like land pretty far afield from the industry-standard prohibitions for pregnant women (though that’s true, too), it’s that these clauses try to police behavior so minuscule and quotidian that even if they did pose some minor danger to the fetus we’d never be able to prove it.

There are two different errors being committed here. The first is that the intended parents don’t actually have all that much influence over the outcome of the pregnancy, so they’re overcompensating with an iron grip on the parts of the process that they can control. There’s fallacy baked into their thinking to be sure, but it’s largely of the immutably human variety. Not much to be done about that.

The more profound — and, happily, correctable — error is that surrogacy agreements are mistaking a medical problem for a legal one. Spoiler alert: the intended parents don’t really care whether their surrogate gets a pedicure, or exercises regularly or anything else. Those requirements are just proxies for the one outcome that truly matters: that the baby comes out healthy. But proxies are the only strings that the intended parents have to pull, and they already have a pricey attorney on retainer, so they direct her to extract an absurd list of concessions from the surrogate. The lawyer, meanwhile, never even reaches the question of whether the proxy restrictions actually line up with improved outcomes for the fetus and surrogate — that’s above her pay grade, and, besides, if all you have is a hammer, even surrogacy arrangement looks like a nail. In the end, none of the stakeholders — surrogate, intended parents, fetus — come away happier or healthier, except maybe the lawyer.

Ironically, the solution might lie in a process that attorneys are already familiar with. Instead of committing to a full-blown jurisprudential process, emotionally-invested litigants will often agree to have their dispute decided by binding arbitration. This is especially common in divorce proceedings, but it’s increasingly being used in other cases as well. The process is simple: the parties meet in a conference room, tell their story to the arbitrator (usually a retired judge), who then makes her final decision. Whatever the arbitrator says goes. It’s a clever way to come to a reasonable conclusion, while avoiding the expense, wasted time and hurt feelings of court.

Surrogacy cases need an arbitrator doctor. Here’s how it would work: the surrogate and intendeds would agree to an arbitrator doc from a licensing board-approved list. Before the surrogacy contract is signed, they’d all gather in a conference room. The arbitrator would be free to ask the parties any question that might help clarify their goals, fears and motivations. Then, based on those answers, and a review of the surrogate’s medical file, the arbitrator would write up a list of behavioral restrictions and monitoring arrangements for the pregnancy, which would then have to be inserted in any subsequent surrogacy agreement. That’s it. Whatever the arbitrator says goes.

Balancing maternal and fetal health is a medical problem, which means that its best served by a medical solution. Legalistic solutions are, in the end, futile. “I think with intended parents, there’s certainly a vulnerability and a need to control that comes out because they’re – someone else is basically physically carrying, literally, their child and is away from them,” a surrogacy lawyer told Berk. “And that is a vulnerable situation to be in. And I think that’s where crazy … restrictions come in. That’s sort of their – an expression of their need to control the situation. But the reality is you’re never going to be able to control this person’s every move.” Intended parents shouldn’t even try.


[1] Berk, Hillary L. “The legalization of emotion: managing risk by managing feelings in contracts for surrogate labor.” Law & Society Review 49.1 (2015): 143-177.

[2] Söderström-Anttila, Viveca, et al. “Surrogacy: outcomes for surrogate mothers, children and the resulting families—a systematic review.” Human reproduction update 22.2 (2016): 260-276.

[3] Sheffield, [edited by] F. Gary Cunningham, Kenneth J. Leveno, Steven L. Bloom, Catherine Y. Spong, Jodi S. Dashe, Barbara L. Hoffman, Brian M. Casey, Jeanne S. (2014). Williams obstetrics (24th ed.).