Surrogacy is a complicated reproductive procedure in which the interests, rights and obligations of different parties are intertwined: the surrogate, the IPs, the future newborn and professionals in the sector.
There are several problems or conflicts that can arise because everyone's interests and responsibilities do not always coincide. In addition, life circumstances can lead to complications and unforeseen events that can jeopardize treatment.
Provided below is an index with the 9 points we are going to expand on in this article.
Lack of professionalism on the part of companies
The success of a surrogacy treatment depends on the numerous actors involved. In fact, it is a complex procedure involving medical, legal and experience skills that intended parents often lack.
Some of the most known professionals include:
- The surrogacy agency in charge of coordinating the process and selecting the surrogate, also referred to as gestational carrier.
- The fertility clinic, which is in charge of assisted reproduction treatment to achieve the embryo and pregnancy.
But there are also professionals in whom the intended parents do not necessarily think, for example the lawyers in the country of destination and origin, the account manager, etc.
You can discover the role of each professional involved in the treatment of surrogacy by clicking on the following article: Professionals in surrogacy.
The success of surrogacy treatment depends on the seriousness and professionalism of the companies, which must offer each patient a service adapted to their particular situation.
Malpractice in surrogacy
With the boom of the surrogacy market, companies have been created in recent years that lack scruples or competition. Some offer unsafe services for their clients or endanger the rights of surrogates, parents or future children.
Among the cases of malpractice, the following can occur:
- Unclear and incomplete budgets
- services not provided for in the initial budget may be invoiced once treatment has begun, when it is already difficult to abandon.
- Illegal practices
- this is the case when, for example, an agency proposes an inappropriate destination (for example, proposes Mexico, Kenya, Russia or Ukraine as a possible destination for gay couples) or advises registering the baby as the child of the intended parents outside the legal procedure foreseen in cases of surrogacy.
- Testimony of false intended parents
- in order to promote an ideal image of the company or on the contrary to defame other companies, some companies create false profiles in Internet forums.
Luckily, these situations are still exceptional, but we recommend that prospective parents be cautious and well informed before signing a contract.
Incomplete surrogacy contract
Although both those directly involved and professionals involved in a surrogacy process strive to achieve the best result with the least risk, the technique can be truncated by different factors or exceptional situations.
In order to avoid possible problems or mitigate their negative consequences, it is essential that the surrogacy contract details how to act in the event of any of the following situations:
- Repentance by the surrogate or future parents
- Severe illness or malformation in the fetus
- Divorce or separation of the intended parents during the pregnancy of the surrogate
- Death of the surrogate or of the future parents (one or both)
- Refusal of the surrogate to hand over the baby
- Absence of the intended parents at the time of delivery
- Administrative difficulties in leaving the country of destination and returning home with the baby
In this sense, the saying “better safe than sorry” applies. These cases are rare, but you must be aware that they are possible to draw up a complete contract that sets out in writing the resolution of complications and unforeseen events.
The lawyers of both parties should draw up the most complete contract possible in order to avoid loopholes.
It will also be time to check, before signing, that the parents and the surrogate mother agree on all aspects of the treatment: medical, legal, ethical, practical ...
The choice of the country is essential for the safety of the entire procedure. It will be necessary to choose a destination that provides coverage if any of the aforementioned complications occur and that recognizes the surrogacy agreement as legal and binding. In this way, the conditions are created to enjoy guarantees and peace of mind.
To find out more about the surrogacy contract, we invite you to click on the following link: What is the surrogacy contract for?
Cancellation of a Surrogate Pregnancy
The psychological tests that are done, both to the surrogate and to the future parents, are of vital importance when it comes to noticing possible regrets during the pregnancy.
This type of evaluation is focused on determining if the surrogate mother is emotionally prepared to gestate another person's baby and if the future parents take over the treatment and trust the woman who is going to gestate her baby.
The bond that may be created between the surrogate and the fetus during pregnancy may be stronger than usual and this may lead to psychological trauma in the surrogate at the time of delivery of the baby. In order to avoid this situation, it is essential that the surrogate knows from the beginning what the surrogate pregnancy consists of and what her role is in the process.
Although not common, both surrogate mother and expectant parents may have regrets.
The harm would be less if regrets occurred before the creation and / or transfer of embryos to the uterus of the surrogate mother. If either of the parties involved decides to cancel the process during getting pregnant, a situation of disagreement and harm to the other involved could arise.
Another situation that may occur is that the future parents want to end the pregnancy because of any malformation, delay or disease that affects the normal development of the fetus. Surrogacy contracts must include the mode of action in the event of discovering a malformation or delay both during pregnancy and after birth.
Changes and unforeseen events during pregnancy
Pregnancy is a long process and we have to take into account that there are situations that can change during the 9 pregnancy months. Often, they are not considered either by the future parents or by the surrogate because they believe they are impossible. However, it is essential to include them in the surrogacy contract in order to know how to deal with them should they occur.
Separation from future parents can occur during pregnancy. Who should keep the baby? This should be detailed in the contract. However, it is usually a judge who ends up determining who should take care of the baby, as well as in cases of separation and custody of children already born.
The death of one or both IPs, for example by accident, is also a problematic situation. Generally, in surrogacy, future parents draw up a will that states who should take care of the newborn in the event of the death of both.
When it is the surrogate who suffers an accident, unfortunately there is not much to do. If the surrogate dies during pregnancy, and so does the baby, the future parents must assume this in the best possible way. It's something that can happen and for which no one is responsible.
In situations like this, the need and importance of having an adequate life insurance is demonstrated, which although it does not solve the problem, it is of great help not to worsen it. In this way, the surrogate mother's family will not have economic problems deriving from the loss of her mother.
First moments after childbirth
As indicated above, the surrogate mother undergoes numerous tests to determine that she is clear that the baby is not hers and that she is ready to deliver it at the time of birth. However, a stronger bond may be established than expected, and when she sees the baby born, she may feel the need to keep it.
Depending on the law of the chosen country, she may or may not be entitled to keep the baby. However, there are countries such as the United Kingdom that offer time for consideration for the surrogate to confirm her decision. If surrogacy is performed in countries that allow this, future parents should be aware of it. Legally, the surrogate would be protected and the parents could do little to prevent her from keeping the baby.
Thanks to the psychological preparation of the participants, they do not usually change their initial decision. More commonly, childbirth occurs ahead of schedule and the birth takes place before the arrival of the IPs.
For this reason, it must be established initially who would take care of the newborn until the arrival of the parents. It is usually the surrogacy agency that carries out the process. However, there are cases in which the surrogate woman has been in charge of taking care of the baby during the absence of her parents.
Taking home the baby
Although we believe that birth is the end of the process, many times later problems can appear, especially when returning home.
To leave the country where the surrogacy has taken place, the baby must have the required documentation to cross the border. This is another good reason to choose a destination where the technique is legal. In this way, it will be easier to obtain certificates that prove that the prospective parents are effectively the baby's legal parents.
Many couples have had legal problems that have prevented them from ending the process happily. Some have been forced to remain in the country without being able to return home with the newborn.
We from Babygest always recommend to dedicate time to the choice of destination and to be well informed of the legal conditions of each one.
Just because there isn’t any explicit law on surrogacy does not indicate that the technique is permitted. The absence of prohibition is not synonymous with permission.
Finally, problems may also arise when registering the baby in the civil register of the country of origin of the intended parents. Therefore, it is essential to know the legislation related to this aspect in the country of origin.
FAQs from users
Is it common for problems to occur in surrogacy?
Complications are rare, but surrogacy is a complex process that potentially generates many difficulties, particularly at legal and emotional levels. Surrounding oneself with the right persons (competent professionals, family support...) is decisive. The contract should be as thorough as possible.
The really dangerous thing, because of the consequences that can be derived, is to make the process without fulfilling the conditions established by law or acting against it.
How do you make surrogacy 100% safe?
As with any pregnancy or fertility treatment, there is no 100% guarantee that a surrogacy treatment will be a success. Intended parents must be aware of the risks and be sufficiently prepared for the peculiarities of the process before starting treatment. During the preparation phase, information and dialogue are essential.
How should a surrogacy agreement look like?
There is no specific form of surrogacy contract, but it may vary from case to case. The important thing is that, regardless of the format, the agreement is as detailed as possible and includes the rights and obligations of each of the parties, as well as the way to act in problematic cases.
Suggested for you
To avoid complications, we recommend that you consult our Surrogacy Guide by clicking on the following link: How does surrogacy work? - Tips and steps to follow.
The surrogacy contract will be a key element to offer guarantees in case of problems or complications. For more information, click here: What is stipulated in a surrogacy contract?
To avoid conflicts and change of heart once the embryo transfer has taken place, it is preferable to begin treatment with a surrogate who shares the philosophy and values of the intended parents. We explain how to find and choose a surrogate in the following article: Tips for choosing the surrogate mother.
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