Giselle Fernandes

Dr. Schivell
Biol 380 AB
26 November 2013
Policy Final
Recognition of the Constitutional Liberties and Responsibilities of Surrogate Mothers
Act of 2013
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the Recognition of the Constitutional
Liberties and Responsibilities of Surrogate Mothers Act of 2013.
(b) Table of Contents- The table of contents of this Act is as follows:
Sec. 1 Short title; table of contents.
Sec. 2 Findings.
Sec. 3 Definitions.
Sec. 4 Requirements.
Sec. 5 Penalties.
Sec. 6 References
SECTION 2. FINDINGS.
(1) The increasing use of surrogacy in recent years has presented many
opportunities for advances in fertility treatments but at the same time has also
posed many ethical and legal dilemmas. Previous situations involving surrogacy
have brought to light questions of finance, identity, health care, and sanctity of
human life.
(2) Though surrogacy is legal in the majority of U.S. states, the rules pertaining to
surrogacy vary from state to state. While some states permit surrogacy without any
regulation, others consider it a criminal offense, and still more impose a variety of
complex restrictions and qualifications that must be met if surrogacy is to be
allowed. In some states, written laws are used, while in others common law is
imposed. The lack of clear, consistent legislation regarding surrogacy complicates
the issue as a whole and can be extremely detrimental for the United States public.
The confusion that results from vague or unclear legislation prevents citizens from
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understanding their rights and responsibilities and can have powerful effects on the
lifestyle choices they make. Confusing legislature is also extremely difficult for law
enforcement to justly and dependably regulate to benefit the people of the United
States of America to the best of their ability. The enactment of laws clearly stating
the civil responsibilities and liberties of surrogates will serve to guide all individuals
involved in surrogacy through potentially difficult decision-making processes. With
proper legislature in place, surrogates, intended parents, and children can have a
much more positive experience.
SECTION 3. DEFINITIONS.
(a) Assisted Reproductive Technology: processes used for attaining pregnancy in
cases where infertility may be an issue. This can be achieved through completely or
partially by artificial means (Wikipedia, 2004).
(b) Intended Parent(s): One or more individuals who intend to create a baby through
the usage of assisted reproductive technology and raise the child as their own. One,
both, or neither parent may or not actually have a genetic link to the child. May also
be called social or rearing parents (Wikipedia, 2004).
(c) Surrogate Mother: Any woman who gives birth to a child for another woman. The
egg may be already fertilized and implanted in her uterus or her own egg fertilized
by the other womans partner (Wikipedia, 2004).
(d) Gestational Carrier: A surrogate mother who uses a previously fertilized egg
rather than providing her own egg (Wikipedia, 2004).
(e) Traditional Carrier: A surrogate mother who provides her own egg as well as
giving birth to another womans child (Wikipedia, 2004).
(f) Embryo Transfer: The act of placing embryos in a womans uterus to begin a
pregnancy (Wikipedia, 2004).
(g) Artificial Insemination: The act of injecting a males semen into a womans
vagina or uterus without actually using sexual intercourse (Wikipedia, 2004).
(h) In Vitro Fertilization: The procedure of fertilization of an egg by sperm outside of
the body (Wikipedia, 2004).
SECTION 4. REQUIREMENTS.
TITLE 1 CUSTODY OF THE CHILD
(a) Surrogate Relations with Child
By agreeing to act as a surrogate mother for the intended parents and signing a
legally binding contract, the surrogate releases all permanent custody over the
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child. With their signatures on the contract, the intended parents agree to full
custody of the child.
(1) To be legally binding, the contract must be signed before the embryo transfer
or artificial insemination.
(2) The surrogate mother may be allowed visiting rights if agreed upon by both
the surrogate and the intended parents. This must be included in the contract as
well as the precise terms of visiting rights.
(3) By signing the contract, the intended parents agree to full custody of the
child and verify their ability to support the child.
(i) In the case of relinquishment of custody by the intended parents or death of both
parents, custody of the child will go to the individual(s) named legal guardian
in the will of the intended parents. If no such will exists, the court will decide
who is to become legal guardian. In the case that the surrogate mother is
named legal guardian of the child either by through the will of the intended
parents or the court decision, the surrogate mother is granted full custody of
the child as well as full access to any medical, legal, and birth records.
(ii) Surrogate mothers must agree to relinquish rights to the custody of the child so
as to make clear who has responsibility for raising the child. This will ensure that
the child is brought up with support and that the intended parents full
understand the role they play in offering that support (Points, 2009). This
decision will also serve to hopefully lessen the childs struggles in understanding
how to view his or her parents (McKenzie). Though giving up the child to be
raised by his or her intended parents may pose difficulties for some surrogate
mothers who feel they have formed a bond with the child, the legislature must
clearly hand custody of the child to the intended parents so as to avoid conflicts
involving multiple parties claiming custody (Bauman, 2012). By clearly stating
this agreement prior to the commencement of the pregnancy, surrogate mothers
will hopefully find the process of eventually giving up the child to the intended
parents a little easier and better understanding of their roles in the pregnancy
(Surrogacy: A 21st Century Human Rights Challenge). By allowing surrogates
visitation rights, intended parents do have the option to let surrogates have
some degree of bonding experience with the child if they so wish (Mirkes, 2013).
The exception also allows for the surrogate to be potentially chosen as a legal

guardian if the intended parents also wish that to be, which could be especially
helpful if the surrogate is a friend or family member.
(b) Access to Medical & Legal Records and Birth Certificates
The intended parents and child must be granted access to the birth certificate and
any legal or medical records involving the child.
(1) The surrogates full legal name must be included on the childs birth
certificate. The child must not be denied access to this information.
(2) The surrogate mother has the right to request a copy of the childs birth
certificate. The surrogate may also request access to any legal or medical
records involving the child prior to his or her birth. After the child is born, the
surrogate mother must gain permission from the intended parents to access
such records.
(i) By giving the intended parents and the child full access to records, the law can
ensure that the parents and child have the information that is their right to
possess and that will allow the parents to best care for the child (Points,
2009). By only allowing the surrogate access to the records with permission
from the intended parents, the surrogates responsibility for such information
is clearly distinguished (Boneifield, 2013). In providing the surrogate mothers
name on the birth certificate, the child would have access to this knowledge
and be offered transparency about the details of his or her birth (Mirkes,
2013). This would protect the childs right to know such information and
possibly bond with the surrogate mother if that is the choice of both parties
(McKenzie). At the same time, the surrogate mother would also have an
official document that would serve as proof of her role in the birth of the child
(Surrogacy: A 21st Century Human Rights Challenge). Allowing the surrogate
to have access to the records if allowed by the intended parents accounts for
the situation in which the surrogate may potentially become a legal guardian.
TITLE 2 SURROGATE RIGHTS AND RESPONSIBILITIES
(a) Protection of Surrogate Mothers Health and Awareness of Medical Conditions
The physician, intended parents, and surrogate mother must all be aware of any
prior health conditions of the surrogate mother and/or intended parents that could
potentially affect the health of the child or the success of the pregnancy. Any
medical decisions involving the pregnancy or birth of the child must be mutually
agreed upon by the physician, surrogate mother, and intended parents.
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(1) The physician and surrogate mother have the sole right to decide how
many embryos are implanted in the surrogate mother. The physician is
responsible for informing the surrogate about the risks of implanting too
many embryos.
(2) A surrogate mother must wait a minimum of six months from the end of
one pregnancy through embryo transfer or artificial insemination before
beginning another pregnancy through embryo transfer or artificial
insemination.
(i) Surrogate mothers have the right to know about any medical conditions involving
the pregnancy so as to ensure that they are fully informed about any and all
risks (Sama-Resource Group for Womens Health, 2012). The law will ensure
that surrogates are making informed decisions about factors in the pregnancy
that could have major effects on their health (McKenzie). In addition, they
also have the responsibility to inform the physician and the intended parents
of any existing medical conditions they may have that could potentially affect
the outcome of the pregnancy so that the health of the child is not
compromised in any way (The Surrogacy Source, 2013). This will ensure
that the pregnancy is as healthy and free from complications as possible
(Boneifield, 2013). By insisting on mutual agreement between surrogate,
physician, and intended parents in any pregnancy-related decisions, no party
will need to fear that their rights or insight are being overlooked (Mirkes,
2013).
(b) Compensation of Surrogate Mothers
The surrogate mother and the intended parents must agree on payment or a
payment plan before the pregnancy begins.
(1) The payment to the surrogate mother must be set before the pregnancy
begins and may not change during or after the pregnancy. Compensation may
not be dependent on the successful delivery of a child, but rather on the time
and effort the surrogate mother has given to play her role in the pregnancy.
(2) The intended parents may not receive reimbursement in the case that the
pregnancy is unsuccessful. The only case in which the intended parents may
receive reimbursement will be if the surrogate refuses to comply with the law or
chooses to abort the baby. In this situation, the intended parents may receive

reimbursement for the payment made only to the surrogate mother, but not for
payments made to other parties, such as legal counsel or psychological care.
(3) The intended parents may not seek government aid through Medicare or
Medicaid to pay the surrogate mother or pay for any part of the pregnancy.
(4) The payment to the surrogate mother will remain the same whether the
pregnancy results in a single birth or multiple births.
(i) By stipulating the standards for remuneration, the law ensures that surrogate
mothers will receive compensation based on the time and effort they have given
no matter the actual outcome of the pregnancy (American College of
Obstetricians and Gynecologists, 2008). This does mean that intended parents
must be aware that they must pay the surrogate mother before the actual
pregnancy and understand that they will not receive reimbursement if the
pregnancy is not successful (The Ethical Issues of Surrogacy). By disallowing the
use of government aid for payment, the intended parents will know beforehand
that they alone must invest in the pregnancy and fully understand the
responsibility they are taking on (The Surrogacy Source, 2013) (Mirkes, 2013).
All parties will also be aware that multiple births will not change remuneration
and will not attempt to compromise the surrogates health because of this
(Sama-Resource Group for Womens Health, 2012).
(c) Complications in the Pregnancy or in the Relationships of Parties
In the case that an ultrasound detects developmental disabilities in the child or any
complications in the pregnancy, the intended parents and surrogate mother must
mutually agree on the fate of the pregnancy.
(1) If the intended parents choose to abort the child but the surrogate mother
disagrees, the surrogate retains the right to continue the pregnancy. The
intended parents are still required to pay the surrogate mother the full payment
as decided at the beginning of the pregnancy.
(2) If the surrogate mother chooses to terminate the pregnancy against the will
of the intended parents, she retains the right to an abortion but will not receive
the compensation agreed upon at the beginning of the pregnancy.
(3) If the intended parents divorce partway through the pregnancy, they are still
required to pay the decided amount to the surrogate mother. Custody rights will

be determined according to the contract signed at the beginning of the

pregnancy or by the court.
(i) With this legislature in place, both the surrogate mother and the intended
parents will be aware of their rights and responsibilities in cases where there are
medical complications with the birth of the child or the relationships of other
individuals involved (American College of Obstetricians and Gynecologists, 2008)
(The Surrogacy Source, 2013). This will also allow the surrogate to the right to
abortion, but will ensure that she is aware of forfeiting remuneration if she
chooses to do so (Mirkes, 2013) (Bauman, 2012). This law will ensure that
neither the intended parents nor the surrogate will have to act against their
ethical, moral, or religious beliefs if a situation arises in which those factors
come into play (Boneifield, 2013). The legislature also ensures that no party pulls
out of the agreement without fully understanding their continued responsibility
to pay or reimburse to the other party.
(d) Right to Legal and Psychological Counsel
Both the intended parents as well as the surrogate mother must receive legal and
psychological counsel before, during, and after the pregnancy.
(1) Payment for legal and psychological counsel will be paid solely by the
intended parents. Intended parents also reserve the right to choose the lawyers
and psychologists from a preapproved list.
(2) If the pregnancy is terminated, the intended parents and the surrogate
mother are required to attend one more session of both legal and psychological
counsel. Following that, both parties may choose to continue counsel, but are
required to pay for the service themselves.
(i) Legal counsel, background checks, and psychological support for both the
surrogate mother and the intended parents would ensure that all parties
maintain positive relationships through the process and help make sure that the
child is provided with a supportive atmosphere for his or her upbringing (The
Ethical Issues of Surrogacy) (Bauman, 2012). The counsel will help surrogate
mothers struggling with understanding the role they play in the pregnancy and
possibly feeling anxious about giving up the child (McKenzie). At the same time,
counseling will allow intended parents to best prepare for the birth of their child
(Surrogacy: A 21st Century Human Rights Challenge). Intended parents would
also be able to better understand how to inform the child about the details of
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his or her birth and make decisions about how large a role they want the
surrogate mother to play in the childs life (Points, 2009).
SECTION 5. PENALTIES.
(a) Any individual who willfully violates Title 1, Sections a and/or b is subject to a
fine. Repeated willful violation will result in jail time.
(1) Denying custody or visiting rights to another party as is their due right
according to the signed contract will result in a fine.
(2) Denying access to records as is the right of the party stated in this law will
result in a fine.
(b) Any individual who willfully violates Title 2, Sections a, b, c, and/ or d is subject
to a fine. Repeated willful violation will result in jail time.
(1) Refusing to disclose relevant information about a partys health conditions
will result in a fine. Refusal of a surrogate to wait the six months before
beginning another pregnancy will result in a fine. A second violation of either of
these rules will immediately result in jail time.
(2) Refusal of the intended parents to compensate the surrogate as agreed in the
contract or refusal on the surrogates part to provide reimbursement where
appropriate will result in the noncompliant party paying both the required
amount in addition to a fine.
(3) Willful termination of the pregnancy by the intended parents against the
wishes of the surrogate mother will immediately result in jail time. Refusal to
provide reimbursement or legal or psychological counsel as agreed upon will
result in a fine.
SECTION 6. REFERENCES
American College of Obstetricians and Gynecologists. Surrogate Motherhood. The
American Congress of Obstetricians and Gynecologists Committee on Ethics.
2013.
<http://www.acog.org/Resources%20And%20Publications/Committee
%20Opinions/Committee%20on%20Ethics/Surrogate%20Motherhood.aspx>.
Bauman, Michelle. Rise in surrogate pregnancies raises ethical concerns. Catholic
News Agency. n.d.
<http://www.catholicnewsagency.com/news/rise-in-surrogate-pregnancies-raisesethical-concerns/>.
Cohen, Elizabeth. Surrogate Offered $10,000 to Abort Baby. CNN Health. 2013.
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<http://www.cnn.com/2013/03/04/health/surrogacy-kelley-legalbattle/index.html?hpt=hp_c1>.
Creating Pathways to Parenthood. Fertility Source Companies. 2013.
<http://www.thesurrogacysource.com/index.html>.
McKenzie, Eleanor. Religious Views on Surrogacy. Opposing Views. n.d.
<http://people.opposingviews.com/religious-views-surrogacy-9339.html>.
Mirkes, Sr. Rene. The Injustices of the Surrogacy Industry. The Catholic World
Report. 2013.
<http://www.catholicworldreport.com/Item/2475/the_injustices_of_the_surrogacy
_industry.aspx#.Unge9PlwpNp>.
Points, Kari. Commercial Surrogacy and Fertility Tourism in India. The Kenan
Insitute for Ethics. 2012. <http://kenan.ethics.duke.edu/wpcontent/uploads/2012/07/Case-Study-Surrogacy-notes.pdf>.
Sama Research Group. Birthing a Market. Sama Womens Health. 2012.
<http://www.samawomenshealth.org/downloads/Birthing%20A%20Market.pdf>.
Surrogacy: A 21st Century Human Rights Challenge. The Center for Bioethics and
Culture Network. n.d.
<http://www.cbc-network.org/issues/making-life/surrogacy/>.
The Ethical Issues of Surrogacy. Modern Family Surrogacy. n.d.
<http://www.modernfamilysurrogacy.com/page/surrogacy_ethical_issues>.
Wikipedia: The Free Encyclopedia. Wikimedia Foundation, Inc. 22 July 2004. Web. 10
Aug. 2004.