Avoiding legal pitfalls in surrogacy arrangements

Summer James, Rebecca Chilvers, Dara Havemann, John Y. Phelps

Research output: Contribution to journalArticle

13 Scopus citations

Abstract

The goal of this article is to discuss the legal pitfalls that reproductive endocrinologists face when participating in gestational surrogacy contracts. This paper was composed using Westlaw and LexisNexis commercial legal search engines to perform a review of statutes and cases pertaining to gestational surrogacy. The search results demonstrated that in the absence of suitable preparation, there is significant potential for litigation while participating in gestational agreements. Providers caring for gestational carriers have been named as parties in lawsuits for failure to provide psychological screening, failure to screen for infectious disease and participation in gestational contracts that are not compliant with state law. There is great disparity in state laws and court rulings pertaining to gestational agreements. When legal disputes arise, individual state laws and court rulings are controlling over the Uniform Parentage Act. Likewise, recommendations by the American College of Obstetricians and Gynecologists and the American Society for Reproductive Medicine do not supersede state laws. The failure to abide by individual state laws unnecessarily exposes reproductive endocrinologists and their IVF facilities to potential litigation. In order to lessen exposure to litigation, an understanding of individual state legislation or historical court rulings is advised. Gestational surrogacy is becoming more prevalent as assisted reproductive technology advances. Despite the many benefits that gestational surrogacy may provide, there are equally as numerous legal pitfalls facing the reproductive endocrinologist and their IVF facilities if they fail to abide by their individual state laws surrounding surrogacy. An extensive review of legal statutes and cases regarding gestational surrogacy was performed in order to provide a comprehensive analysis of the current state of surrogacy. There is a great deal of discrepancy between laws regulating surrogacy in different states. However, despite these discrepancies, it still remains the state laws that are upheld in the courts over recommendations made by the American College of Obstetricians and Gynecologists and the American Society of Reproductive Medicine. This article is intended to provide a review of the potential litigation that a reproductive endocrinologist and their clinic may face when participating in gestational surrogacy contracts.

Original languageEnglish (US)
Pages (from-to)862-867
Number of pages6
JournalReproductive BioMedicine Online
Volume21
Issue number7
DOIs
StatePublished - Dec 2010

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Keywords

  • Gestational carrier
  • Gestational contract
  • Law
  • Litigation
  • Surrogacy

ASJC Scopus subject areas

  • Reproductive Medicine
  • Obstetrics and Gynecology
  • Developmental Biology

Cite this

James, S., Chilvers, R., Havemann, D., & Phelps, J. Y. (2010). Avoiding legal pitfalls in surrogacy arrangements. Reproductive BioMedicine Online, 21(7), 862-867. https://doi.org/10.1016/j.rbmo.2010.06.037