Yet another story is making the media rounds thanks to a right wing advocacy group that wants to ban all forms of assisted reproduction, including IVF. While we were involved in a similar case last month, we have no role in this current situation. Given that, I am not going to comment on the specific allegations as I have no way of determining their truth or falsehood. But given the false and sensational reporting in our case, I would encourage everyone not to jump to any conclusions in this matter as there are clear agendas in play that make it impossible to fairly judge what has taken place.
With that said, there are a few points worth mentioning. First, the widely held consensus of almost all legal scholars in this field is that any contract provision mandating a woman undergo a reduction/termination of her pregnancy is unenforceable. As it should be. A woman has a fundamental constitutional right to make decisions regarding her body — even when she is carrying a child for someone else. A husband cannot force his wife to have an abortion nor prevent her from terminating a pregnancy. Neither can an Intended Parent. Any competent attorney in this field will have explained these risks and limitations to their clients — whether they be representing an Intended Parent or Gestational Carrier. So to pretend that anyone is being exploited or commodified is nothing more than a sound bite designed to invoke sympathy or to advance an agenda.
Secondly, I would like to hear the rationale for transferring three embryos into this gestational carrier. If neither the Intended Parent or his Gestational Carrier wanted a triplet pregnancy, then why transfer three embryos? Most Reproductive Endocrinologists, agencies, psychologists and attorneys will recommend a single embryo transfer to avoid having a high-risk pregnancy and all the complications inherent in a multiple pregnancy. So absent some compelling medical justification, the transfer of 3 embryos into this gestational carrier was outside the norm. In fact, as part of our practice, we sometimes will even have the medical facility execute a document agreeing to not transfer more than 1 or 2 embryos — just to minimize the risk of this very scenario and to ensure all the parties are on the same page.
Finally, as a general comment, attorneys need to understand that their role is more than just as an advocate for their client. They are also counselors at law. Any reproductive attorney worth their salt understands that concept and recognizes that often times the best solution is not to resort to the legal system. Sadly too many attorneys reflexively fall back to old habits and ignore the highly personal nature of these relationships and what the ultimate goal is – to ensure the health and safety of the surrogate and the child she is carrying. Firing off demand letters, threatening litigation and demanding inane sums of money is the equivalent of a gorilla beating its chest. What does it accomplish? Nothing. Might look impressive but it is counter-productive and does a terrible disservice to all involved. Professionals in this industry need to take a step back when confronting issues like this, consider the big picture, recognize the fragility of these relationships, the sincerely held beliefs of the individual parties and focus on the ultimate objective.
Bottom line is that no one can force a woman, whether she be a surrogate, wife, girlfriend or stranger to undergo an abortion/termination/reduction. This is well accepted. So why exactly are we here today with this case in the news? Well, when the dust settles, I suspect it will come out that this was part of a larger agenda by a lobbyist group to end access to assisted reproduction — from IVF to surrogacy. And the victims in all of this are the underlying parties and future parents who may be denied access to these services — depriving them of the joy of ever becoming parents.
I wish I had more time to share my thoughts on this case. For the time being, you can also read our blog entry from last month that expounds upon these concerns.
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