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Termination Clauses in Surrogacy Agreements

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shutterstock_186818369An article appeared in the Huffington Post from the perspective of a couple one of whom was a traditional surrogate for another couple.  The article centers on the issue of termination clauses in surrogacy agreements.  The article unfortunately and the opinion of this couple is fraught with misconceptions about termination clauses and in my opinion, bad judgment.   In this story, a fetus was diagnosed with DOWNS syndrome. This was a traditional surrogacy arrangement in which the surrogate’s eggs were used. Not typically a recommended path. The problem with this article is the way that this couple, one of whom was the surrogate, frames the issue of termination clauses (termination of the fetus) based on medical issues. They state that these provisions are too broad and that termination should always be up to the Surrogate and not the Intended Parents. 1) The issue of termination is perhaps on of THE most important issues in a surrogacy arrangement and contract. When properly handled, this is an issue which must be thoroughly discussed and “medical issue” should be as carefully defined as possible. A surrogate should be asked to think about this carefully, to not only discuss this with the agency and of course her spouse/significant other, but with the psychologist who is part of the team as well as medical professionals involved. If there is any doubt about whether she and the Intended Parents are not in total agreement and understanding or if she is under any doubt of her ability to terminate under the circumstances discussed and outlined in the agreement, then she should not proceed. Asking Intended Parents to take on responsibility for a child, their biological child, that they are not prepared to do after the fact is not correct.

When a surrogate has moral, ethical, religious beliefs that make termination of a fetus abhorrent, then she should either not proceed in becoming a surrogate or match with Intended Parents whose moral, ethical and/or religious beliefs match with hers.

Of course this story illustrates how absolutely wonderful and life-enriching parenting a special needs child can be but it should not become the poster story for ignoring the responsibilities that come with deciding to carry a child for another couple as a gestational surrogate.