Gestational Carrier Pregnancies: Legal and Ethical Considerations for Pediatricians

Abstract

This case explores the legal and ethical considerations for pediatricians surrounding gestational carrier pregnancies in the United States. Because of high success rates for assisted reproduction, state laws supporting same-sex adoption and surrogacy, and established legal precedents, gestational carrier pregnancies are increasingly common. The case presented involves a gestational carrier in preterm labor at 30 weeks’ gestation with malpositioned twins who declines a cesarean delivery. Three commentaries are presented. The first highlights the importance of understanding the ethical implications of gestational carrier pregnancies in prenatal counseling. The second commentary emphasizes the pregnant person’s right to autonomy and bodily integrity, and discusses considerations in surrogacy pregnancies, including the authority to authorize a cesarean delivery, valid informed consent, and decision-making for neonates. The third commentary discusses autonomy, emphasizing the importance of contracts in surrogacy pregnancies, and suggests that, in the case of a conflict between the gestational carrier and the intended parent(s), the gestational carrier’s preference should be decisive regarding medical care during pregnancy. These discussions highlight key concepts for ethically informed and family-centered care in gestational carrier pregnancies and deliveries.

In an obstetrics context, a surrogate can be defined as a person who carries a child for another person(s).¹ The most common form of commercial surrogacy in the United States is a gestational carrier pregnancy. A gestational carrier is a more specific term referring to a surrogate who is not genetically related to the embryo. A gestational carrier carries the pregnancy for partnered or unpartnered individuals, commonly referred to as intended parent(s). The intended parent(s) may or may not be related to the embryo.¹ The intended parent(s) enter into a contract with a gestational carrier through a surrogacy agency. A reproductive endocrinologist transfers embryos, created via in vitro fertilization, to the gestational carrier; if this is successful, the carrier continues prenatal care with an obstetrician.²

In the United States, between 1998 and 2019, assisted reproduction technology cycles involving a gestational carrier increased from 1% to 5.4% of total assisted reproduction technology cycles.^3,4 Several factors may have contributed to this rise in gestational carrier pregnancies. The United States has relatively high success rates for assisted reproduction compared with other countries, increasing the likelihood of an overall successful pregnancy.⁵ Secondly, worldwide, many countries prohibit commercial surrogacy.⁶ Furthermore, even if countries permit commercial surrogacy, many prohibit it for lesbian, gay, bisexual, transgender, queer or questioning, intersex, asexual, or other persons.^6,7 Although there are no federal laws regulating commercial surrogacy in the United States, many states have legal framework permitting it.⁸ Currently, few states prohibit surrogacy, and legal precedents supporting it continue to emerge.^7,8

Importantly, however, state laws vary surrounding parenthood of the fetus for gestational carrier pregnancies.² In some states, a pre or postbirth order is created between a gestational carrier and intended parent(s) which immediately transfers legal parenthood from the gestational carrier to the intended parent(s) at birth.² In other states, intended parent(s) must legally adopt the infant after the birth.⁸ Ambiguity and lack of knowledge surrounding surrogacy, parenthood, and parental authority can foster misunderstanding, and ethical conflicts may arise. The following case and commentaries illustrate some concepts relevant to gestational carrier pregnancies and deliveries to help clinicians provide family-centered and ethically informed care. The gestational carrier and parents gave permission to discuss this case for educational purposes. Clinical details have been changed to protect their privacy. Although the commentators address both ethical and legal issues, none is providing legal advice.

Case

Jane presents at 30 weeks’ gestation with a dichorionic, diamniotic twin pregnancy in preterm labor. She is a gestational carrier; the pregnancy is the product of in vitro fertilization of donor eggs and parental sperm. Jane is gravida 4, para 3, with a history of 3 previous vaginal deliveries. Her cervix is actively dilating and her membranes are unruptured. The fetuses are malpositioned: 1 fetus is transverse and the other is breech. Jane’s obstetrician recommends a cesarean delivery, which she declines. She wishes for future pregnancies and vaginal births, referencing a friend’s successful vaginal breech delivery. The surrogacy contract is being reviewed by the hospital’s legal department. Cervical dilation is progressing. The intended parents, Tom and John, live in another country but are available by phone. The neonatology team is asked to consult for the preterm gestation and the neonatal risks of breech extraction. What role, if any, should Jane’s surrogacy play in their consultation?

Hayley Wilcox, DO, Neonatologist, and Christy Cummings, MD, Neonatologist and Bioethicist, Comment

Pediatricians, usually neonatologists, often counsel caregivers expecting medically complex or premature infants. Prenatal counseling helps families set expectations for their infant’s care after birth, facilitates communication and decision-making, and is recommended by both the American College of Obstetricians and Gynecologists⁹ and the American Academy of Pediatrics.¹⁰ Sometimes, preferences for providing or withholding life-sustaining treatment are discussed prenatally. Often, informed consent, or parental permission, is obtained in advance for anticipated interventions (eg, NICU admission, donor breast milk, and blood products), although this may vary by institution. Prenatal consultation can also help establish trust with families.

This neonatology consult request includes discussion of antenatal and neonatal considerations. Specifically, the team is asked to discuss the risks of head entrapment for malpositioned preterm twin infants, as well as potential risks of prematurity and anticipated NICU admission. Because Jane is a gestational carrier, multiple additional questions arise: What is the best approach to decision-making when caring for a gestational surrogate when the care plan/contract is unknown and delivery is anticipated? In addition to speaking with Jane, should the NICU team also speak with the intended parents, Tom and John? If the team speaks with Tom and John about the neonatal risks to the twins, will that violate Jane’s privacy? Is there a risk that Jane could feel coerced into treatment she has the right to refuse? If Tom and John will assume parentage after birth, should the team discuss prematurity and anticipated NICU course with Jane, or Tom and John?

To answer many of these time-sensitive questions and respect her autonomy, the NICU team first speaks with Jane alone, seeking clarity surrounding decision-making, specifically her reasoning for declining a cesarean delivery. She offers several reasons: She has a history of advanced cervical dilation in a previous pregnancy and believes delivery is still remote, a friend had a successful vaginal breech birth, and she wishes for future vaginal births. The team explains the unique aspects of this case, and reiterates potential risks, including neonatal risks of head entrapment, possible neurologic injury to the infants, or even death. Jane offers that, although she has decision-making rights before delivery, she defers to many of the intended parents’ preferences, such as antenatal steroids. The team receives permission from Jane to speak with John and Tom together with her.

The team reaches John and Tom by phone and they agree to speak together with Jane. The team proceeds with a general NICU consult discussing anticipated care and potential complications for infants born at 30 weeks’ gestation. It is easier to discuss these issues first before discussing the mode of delivery. They discuss the benefits of expressed breast milk in this population, including donor human milk. Jane asks the couple if they prefer breast milk, and offers to express milk for the infants for a period of time after birth. John and Tom agree.

If Jane refuses a joint discussion with Tom and John, her privacy should be respected. The benefits of prenatal counseling do not outweigh Jane’s right to privacy. Jane should be informed that, after birth, Tom and John will have access to their newborn’s protected health information, and the prenatal history that is relevant to their newborn’s care will be available to them.¹¹ Physicians may discuss aspects of prenatal care relevant to the newborn with Tom and John, but only after birth, unless permission is obtained earlier from Jane. Physicians are encouraged to adhere to established protocols restricting protected health information from the birthing parents’ chart to information directly pertinent to the newborn’s care.¹¹

In this case, the gestational carrier and intended parents are generally collaborative and in agreement. However, there is an ethical conflict surrounding mode of delivery and potential fetal and maternal risks. Pregnant people retain the same right to autonomy as nonpregnant persons, and should be permitted with informed consent to refuse interventions, even if their choices contradict the care team’s recommendations.¹² This principle is based on a right to bodily integrity, which is the right to control one’s own body without interference. This includes the right to choose whether to have prenatal care or medical interventions, and to refuse unwanted medical procedures.¹³ However, refusal of medical treatments may have risks for both the pregnant person and fetus, and any interventions must involve informed consent and respect for the pregnant person’s autonomy.¹⁴ The physician’s duty is primarily to the pregnant person, with interventions for the fetus undertaken through their body while accounting for their autonomy. Pregnant people who pursue gestational surrogacy have ultimate authority over antenatal management (their body), such as fetal monitoring, antenatal steroids, and mode of delivery. The intended parent(s) have authority over neonatal management, such as resuscitation decisions and newborn care, because the pregnant person’s bodily integrity is no longer at issue, and the focus should be shifted to the infant’s best interests.⁸ This becomes challenging because some antenatal decisions (eg, steroids, magnesium, and cesarean delivery) directly affect neonatal outcomes.

In the state where Jane resides, there is an established process for birth orders (or contracts) through the family court system. The birth order is typically completed a few weeks before the anticipated birth and establishes intended parent(s)’ legal parentage at the time of delivery. However, this process varies by state.¹⁵ Notably for pediatricians, some states do not legally recognize a nongenetic parent’s legal status, birth orders may be delayed, and some states require intended parent(s) to undergo a formal adoption process.⁸ Ensuring a competent, safe, and supportive birth experience requires a comprehensive understanding of the intended parent’s(s’) and gestational carrier’s legal contract and birth order plan. To achieve this, it is essential that the care team engage in a thorough discussion with the gestational carrier, intended parent(s), hospital’s legal counsel, and social work at the earliest opportunity during prenatal care.¹⁶ By proactively addressing these critical issues, the care team can anticipate and mitigate any potential complications, thus promoting a positive and supportive environment for all parties involved.

Mark Mercurio, MD, MA, Neonatologist and Bioethicist, Comments

Before addressing the specific questions posed, an important point about maternal rights is worth emphasizing. It is widely agreed among bioethicists and clinicians that a pregnant patient who is also a genetic parent, by far the most common scenario in pregnancy, has the same claim to autonomy and bodily integrity that nonpregnant patients do. A person should not be seen to lose that right by virtue of becoming pregnant. There is some societal disagreement about dangerous behavior that may present potential harms to the fetus and future child, such as substance abuse, but it is widely accepted among clinicians and ethicists that the pregnant patient’s right to autonomy and bodily integrity, including refusal of invasive procedures such as cesarean delivery, must be respected. Some have argued, including this author, that pregnancy, when delivery of a newborn is intended, carries a moral obligation on the part of the pregnant individual to avoid harm to a future child.¹⁷ This obligation should be seen to stand for surrogate pregnancies as with any other. This does not, however, translate to an obligation, or a right, on the clinician’s part to enforce such a moral obligation upon and over the objections of the pregnant patient. The surrogate’s right to autonomy stands.

A fundamental question for the case at hand is whether Jane’s right to bodily integrity and autonomy is altered or lessened by the existence of the contract with the intended parent(s). The contract is a legally binding agreement, and it is important at this point to acknowledge that this author claims no special legal expertise, and is approaching these questions as a clinician and bioethicist, not from a legal standpoint. Nevertheless, the contract does seem to be central to the questions, and legal issues aside, there is an ethical obligation to keep one’s word. We are rightly conditioned to the importance of patient autonomy, but it is possible that the contract that Jane signed includes limitations on her autonomy. These may include such things as limitations on travel, participation in certain activities deemed dangerous for a pregnancy, ingestion of certain substances, etc. It also may contain provisions that she will follow medical advice, including undergoing recommended invasive procedures such as amniocentesis, and, relevant to this discussion, cesarean delivery for her own benefit or for the benefit of the fetus and future child.

Whom do you counsel with a threatened preterm delivery in a surrogacy pregnancy? The intended parent(s) or gestational carrier, or both?

Given that all 3 parties have an interest in the management and outcome of a threatened preterm delivery, it seems reasonable to include them all in counseling. Theirs is a unique relationship, and they share an interest in the pregnancy and the health of the fetus and future child. It is possible that Jane may have previously agreed by contract to include the intended parent(s) in any such discussion. If so, it could well be argued that, legal issues aside, she has an ethical obligation, as with all explicit agreements, to honor her commitment unless there is a substantial and unforeseen change in the situation. That is to say, people generally have a moral obligation to keep their word, and that obligation could apply here. If she subsequently chooses not to honor the agreement, and to exclude the intended parent(s) from discussion of her medical management, she may be in violation of her contract, and there may consequences including loss of payment. However, it is neither the duty nor the right of health care providers to enforce the contract with regard to her care, or to enforce her ethical obligation to keep her word. Her right to confidentiality should ultimately prevail, and the physician should not discuss her situation or medical management with the intended parent(s) without her permission at that time. If she withholds permission, the clinician should document in the medical record that Jane refused to have Tom and John participate in the discussion regarding her medical management. However, it would still be appropriate before delivery for the neonatologist to discuss with the intended parents any potential issues related to anticipated problems and the medical management of the twins after birth, to the extent that this could be done without violating Jane’s privacy. A good faith effort should be made to keep them thus informed, but regardless of whether such a conversation takes place, decisional authority before birth remains with the pregnant patient.

What if there is a conflict between the gestational carrier and intended parent(s)?

The question then arises of what to do if Tom and John are apprised of a medical situation, and they disagree with Jane regarding the plan. That may have been the case when Jane refused cesarean delivery at 30 weeks. Once again, it is important not to conflate the question of what the contract requires of Jane with what the clinicians should do. If, for example, the contract requires that Jane undergo a cesarean delivery if recommended by the obstetrician, it does not follow that physicians should endorse or perform the procedure over her objection. She might be in violation of the contract, and that could have financial or other consequences, but clinicians should not seek to enforce the contract over her objection if such enforcement involves violation of her bodily integrity. If there is a disagreement between Jane and the intended parents Tom and John regarding how to proceed with Jane’s medical care during the hospitalization, Jane’s preference should be determinative. This would be the same for operative delivery or any other medical intervention that is recommended on the basis of maternal or fetal indications.

If a neonate has a poor neurologic outcome or serious illness after birth, who is the decision-maker for complex issues such as withdrawal of life-sustaining treatment, especially when urgent decision-making is needed?

It is likely that the contract stipulates that responsibility for the twins and decisional authority transfer to the intended parent(s) upon birth. In that case, after delivery, the neonatologists should respect the contract and work exclusively with the intended parent(s), as they would other parents, including adoptive parents, as is feasible within a given state’s jurisdictional instruction. In that situation, unlike decisions made before birth, the contract could be honored over Jane’s objection without violating her right to privacy or bodily integrity. Counseling about ongoing medical problems after birth in either twin, including consideration of therapeutic options, should not involve the gestational carrier, unless the intended parent(s) approve it. In the event that a different agreement was reached as part of the contract that gives Jane custody/authority for a defined period of time after delivery, it would be appropriate for clinicians to honor that agreement, and thus counseling would be directed toward Jane.

If the contract gives the intended parent(s) authority upon birth, and for some reason, they cannot be reached and the situation is urgent, clinicians should act as they would for any other pediatric patient whose legal surrogate decision-makers (typically parent or parents) are not available. If time allows, the court and/or child protective services should be involved in important medical decisions. If there is not sufficient time to involve the court, clinicians should act on the basis their assessment of the child’s interests and avoidance of significant harm, working as much as possible in consultation with colleagues immediately available to confirm their assessment.

Similar situations where this may be relevant include threatened birth at extremely preterm gestations or any delivery for fetal indications which may impact the health of the gestational carrier.

The arguments presented above apply to these similar situations. The pregnant patient’s right to privacy, autonomy, and bodily integrity should guide medical management before delivery in these other examples, as described above for the case of Jane.

This case provides an excellent illustration of the benefit of what might be termed preventive ethics. By that is meant, to the degree possible, the anticipation of potential conflicts and work to resolve them before they arise. This should include, as with all good medical care, discussion in advance of anticipated and potential complications, such as the increased risk of preterm birth in a twin pregnancy. It would also include at least brief discussion in advance of management decisions that are likely to arise. An obstetrician providing care to a patient with a surrogate pregnancy should be aware of the details of the contract, and should share them with the anticipated delivery hospital and pediatric provider early in the pregnancy. There should be clarity for all as to who has decisional authority before any conflict or crisis arises. When in doubt, consultation with the hospital legal service is recommended.

Thaddeus Pope, JD, PhD, Lawyer and Bioethicist, Comments

This case raises at least 4 legal questions:

1. first, who is the decision-maker for the cesarean delivery?

2. second, is Jane providing valid informed consent?

3. third, may clinicians share information about treatment during pregnancy with the intended parents? and

4. fourth, who is the decision-maker for the neonates?

1. Who can authorize the cesarean delivery? Jane’s obstetrician recommends a cesarean because 1 fetus is transverse and the other is breech. Yet, Jane declines. Because Jane’s decision for vaginal birth may adversely impact the health of the twin fetuses, Tom and John might not support Jane’s decision. Nevertheless, this is Jane’s pregnancy. Although Jane is a gestational carrier with no genetic ties to the fetuses, the manner of giving birth is Jane’s decision. She retains all the rights of any other pregnant patient until the moment of birth.¹⁸

Although many gestational carrier contracts purport to give intended parent(s) the right to make decisions about medically indicated cesarean deliveries, those contractual provisions are generally unenforceable. There is legal variability from state to state,¹⁹ but the majority rule is exemplified by Florida, which provides that a gestational carrier is the “sole source of consent with respect to clinical intervention and management of the pregnancy.”²⁰ A recently enacted New York law even more explicitly clarifies that the gestational carrier’s scope of decision-making authority includes “whether to consent to a cesarean delivery.”²¹

Furthermore, this rule accords with the new Uniform Parentage Act that is being enacted by a growing number of states: “The agreement must permit the surrogate to make all health and welfare decisions regarding herself and her pregnancy.”²² And it accords with the even more recently promulgated American Bar Association Model Act Governing Assisted Reproduction.²³

Beyond legal instruments, the majority rule on gestational carrier rights also accords with leading professional society guidelines. The American Society of Reproductive Medicine recommends that the gestational carrier should be, “regardless of the contract,” the “ultimate decision-maker” and “retains all rights to direct her medical care.”¹⁶ The American College of Obstetricians and Gynecologists similarly advises: “The obstetrician should not look for input from the intended parent(s),” because the gestational carrier is “the only one empowered and enabled to make independent decisions regarding any … procedure that may be indicated during her pregnancy.”¹⁶

2. Is this valid informed consent? Even though the decision between vaginal birth and cesarean is Jane’s, her obstetrician and the consulting neonatology team must ensure that Jane understands the risks to herself and to the fetuses.²⁴ Jane’s reference to a friend’s successful vaginal breech delivery suggests that the previous case may be exerting undue salience on Jane’s decision-making. Because clinicians need not only Jane’s bare consent but also her informed consent, they must ensure, ideally with a certified decision aid, that Jane appreciates the risks, benefits, and alternatives to vaginal birth in these circumstances.

Furthermore, although the terms of the gestational carrier contract do not affect clinician duties, Jane should also appreciate potential financial consequences of breaching her contract with Tom and John. Although informed consent duties traditionally concern purely clinical information, a growing number of states require clinicians also to discuss other information that the reasonable patient would deem significant or important. The American College of Obstetricians and Gynecologists similarly recommends that the “gestational carrier should be made explicitly aware of … consequences that may result after a contract breach.”¹⁶

3. May clinicians share information about treatment during pregnancy with the intended parents? Although Jane is the sole decision-maker regarding the pregnancy, there is a separate confidentiality question. Clinicians may not share protected health information about Jane’s treatment without Jane’s authorization. Although Jane has surely given such authorization to Tom and John in the gestational carrier contract, her present objection constitutes a revocation invalidating that previous authorization.²⁵

4. Who makes treatment decisions for the neonates? Because Jane is experiencing preterm labor at 30 weeks, there is some chance that 1 or both neonates may have a poor neurologic outcome or serious illness after birth. That may require decisions about complex issues such as withdrawal of life-sustaining treatment. In that case, the intended parent(s) are the legally authorized decision-makers in most states.

As with the cesarean question above, the rules here are clear and well-settled in most states.

Gestational carrier arrangements typically include obtaining prebirth orders.²⁶ These court orders officially declare the intended parent(s) as the legal parent at birth. In addition, in the absence of a prebirth order, state laws generally provide that the gestational carrier has “no claim to parentage of a child conceived by assisted reproduction under the agreement.”²² These laws further clarify that the intended parent(s) “immediately on birth will be the exclusive parent(s) of the child.”²² Although Tom and John live in another country and may not even be US citizens, that does not affect this analysis or result.

In sum, the gestational carrier, not the intended parent(s), is the legally authorized decision-maker regarding a cesarean delivery and other interventions that affect her health during pregnancy. After birth, the intended parent(s) become the legal parent(s). They, not the gestational carrier, are the legally authorized decision-makers regarding health care for the neonates. These are the rules in most, but not all, states. Clinicians should consult their legal department to determine the requirements of their state’s law.

Outcome

Jane’s preterm labor stalls at 5 cm and she returns home with labor precautions. She follows regularly with her obstetrician. Active labor starts again at term. Both twins are breech. Jane consents to a cesarean delivery. The twins are born healthy, adopted at birth by Tom and John, and discharged in their care.

Editor’s Comments

The authors of this Ethics Rounds provide readers with helpful information about gestational carriers and their authority; they cannot ethically or legally be required to involve intended parent(s) in their decisions about their pregnancies or be forced to undergo cesarean deliveries. Neonatology teams can hopefully create moral spaces within these constraints in which to better understand gestational carriers’ and intended parents’ stories and develop justifiable resolutions.²⁷ The parties appear to have achieved such a resolution in this case.