Rich-Vaughn-Blog-Surrogacy-International-Media

Surrogacy Cases Gone Wrong in International Media

A number of high-profile cases of malfeasance or unethical activity related to international surrogacy have recently made headlines worldwide, fueling negative misconceptions. Such cases, while exceedingly rare, surface from time to time, and each time they crop up, misconceptions are fueled by knee-jerk reactions and lack of knowledge. As attorneys in this field, the members of the ART Committee will be called upon for, and indeed should be proactive in providing, careful, thoughtful responses to address these cases and use them as opportunities to educate the media and the public.

Unfortunately, such negative reports fuel the societal stigma, religion-based disapproval and misperceptions about the role of surrogates that exist in many parts of the world. All too often, the reaction from governments, lawmakers and citizens is to suggest or even enact severe limitations on surrogacy—on who is allowed to become a parent via surrogacy, on how and where donor and implantation services may be carried out, on which party becomes legal parent to the child born of surrogacy, and on how the citizenship of that child is determined. One such reactionary solution is to implement an international convention on surrogacy, similar to the Hague Convention on Adoption.

But rather than improving surrogacy practices and protecting individuals, the unintended consequence of imposing stringent limitations on surrogacy is to make it less accessible to those who most need it, motivating them to seek services through extra-legal networks.

Therefore, it is essential that ART attorneys and fertility service professionals be prepared with thoughtful, factual responses when the next surrogacy scandal hits the media.

One Bad Outcome Does Not Mean Surrogacy Should Be Banned - Most Surrogacies Have Tremendously Affirming and Positive Outcomes.

First, it is important to point out that cases of malfeasance or unethical practices in surrogacy are exceedingly rare—the exception rather than the rule. Even though cases with positive outcomes (for intended parents, surrogates, and the resulting children) outnumber those with bad outcomes by thousands to one, sadly it is the bad outcomes that attract the lion’s share of publicity.

It is also important to note that when these sensational cases occur, the facts are rarely clear from the outset; new information develops as investigations proceed—yet the media is quick to pounce on the most salacious details, often with greater concern for getting the “scoop” than with getting the facts straight.

As knowledgeable professionals, it is our responsibility to educate the public and the media that, for the vast majority of surrogacy cases, in which full disclosure of potential risk, clearly defined parentage rights and responsibilities, and the informed consent of the surrogate are documented in properly executed legal agreements, surrogacy is a highly positive experience for all participants.

It is our responsibility to remind the public and the media that the fact there are people who misapply a process does not mean the process itself is bad or inherently flawed.

To ban surrogacy is, in essence, to ban a fundamental human right of procreation for individuals who cannot procreate naturally because of a medical condition, because two partners are of the same gender, or because an individual wishes to conceive in the absence of a partner. In fact, in many of the cases that have made headlines recently, intended parents legally prohibited from having a child via surrogacy in their own countries have sought surrogacy services in countries where no laws governing surrogacy existed at all. In other words, it was government’s restrictions on surrogacy that created the situations in which the surrogacies ended badly.

Claims that Surrogacy is Fraught with Coercion and Exploitation

Some constituencies call for a ban on surrogacy entirely, calls typically renewed every time negative headlines surface. Yet it is each individual society that is best equipped to define ways to protect its citizens against potential abuses, as the definitions of “coercion” and “exploitation” may vary from society to society. If we fear coercion and exploitation of surrogates and intended parents or misuse of the international surrogacy market itself, then the ideal solution would be for each nation to develop an approach to protect all parties who participate in such arrangements rather than ban these arrangements altogether.

As knowledgeable professionals, we experience in practice how a properly drafted surrogacy agreement will cover many of these issues, including a range of medical developments, such as the detection of birth defects or illness in the embryo. We also know that management of the pregnancy is a matter which should be thoroughly discussed and negotiated between intended parents and surrogates as part of the matching process, and it should be determined based on the parties’ respective personal beliefs in conjunction with applicable law and addressed in the written agreement between the parties.

Additional cries for heavy screening of intended parents to pre-determine their “suitability” as parents, or cries that intended parents shouldn’t just be allowed to change their minds or abandon babies, or calls for doing more to protect the children are also common. Sadly, bad people and bad things happen with natural procreation as well – and we have systems and laws and procedures in place to handle this. When surrogacy occurs in a jurisdiction in which it is legal, pre-screening is typically done prior to entering into an agreement and includes medical evaluations, psychological evaluations and criminal background checks. In natural procreation, as with surrogacy, the child’s protection is that, if he or she is born to a parent who is unfit (for any reason), the government steps in after birth to remove the child from the environment and terminate the genetic parents’ rights and in the case of abandonment, placing the child with adoptive parents. Such situations are extremely unfortunate and especially discouraging when they happen in surrogacy, but there are child-protection systems already in place to address them.

Would An International Convention on Surrogacy Make Matters Worse?

Regulation of international surrogacy as a proxy for other issues in the international private law sphere surely will have unintended consequences as well. The Hague Convention on Adoption, enacted with the best of intentions, has had the unintended consequence of virtually ending adoption among the signatory nations, resulting in delays of up to eight years to adopt a child, along with attendant uncertain outcomes. The enactment of an international convention governing the terms of surrogacy is fraught with peril. It will almost certainly drive some people out of the market and into less desirable means of achieving parenthood. Further, regulation of the narrow issue of the surrogacy market itself will not address the structural challenges with international parentage decisions generally.

A Framework of International Comity Under Which Orders of Parentage Are Respected

The practical problems with international surrogacy are grounded in conflicts of laws and comity issues surrounding parentage, family structure, nationality, and immigration. Any international surrogacy convention should focus on a framework for open dialogue between nations about the reconciliation of these conflicts, particularly when the issues are not contested by the parties involved. In the end, the conflicts of family and immigration law are the issue, not surrogacy itself. Any convention should focus on these issues rather than try to regulate surrogacy as if it were comparable to adoption.

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien
MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.