Podcast Review: Gestational Carriers and the Law

Medical professionals often need to be familiar with the law. From basic consent rules to the tort of negligence, it constantly shapes their work and responsibilities. For specialists in reproductive medicine, however, staying up to date can be a challenging task. To assist, this American Society of Reproductive Medicine (ASRM) podcast, Gestational Carriers and the Law, interviews Rachel Loftspring – an attorney from Ohio who specialises in surrogacy. She provides an overview of what medical professionals ought to know about this area of law. Though the podcast is useful in so far as it goes, those in need of detailed information should also look elsewhere.

The conversation covers various ways that the responsibilities of doctors and attorneys (lawyers in the UK) intersect during the surrogacy process. For instance, it explores the benefits of obtaining medical clearance before proceeding with the contracting phase. Also discussed is the importance of following the contractually agreed timeline when implanting embryos. This is practical information that both professions need to be aware of to ensure these arrangements can proceed as smoothly as possible. Following this advice will protect the best interests of all involved – the main reason that these cross-disciplinary conversations are so important.

The podcast also touches on what assisted reproduction specialists should know about COVID-19 and surrogacy. For example, intended parents have different views on whether they want their surrogate to be vaccinated. This is mentioned as part of the advice given to IVF clinics. In particular, the interviewee notes that if clinics require surrogates to be vaccinated as a matter of policy, the parties should be informed of this early in the process. It is also interesting, however, as it adds an additional layer of complexity to the issue of autonomy and third-party reproduction.

One of the most contested aspects of surrogacy is how to balance the rights of gestational carriers to self-determination and bodily autonomy with the obvious vested interests of the intended parents in the process. Though it is common for parties to defer to medical advice in the case of disagreement, these policies mean that vaccination may no longer be a mere recommendation. Given the fluctuation in advice about COVID-19 vaccinations for pregnant people, this is a particularly significant development. Just as medical professionals need to be aware of the law, therefore, attorneys similarly need to remain up to date with medical guidance if they are to effectively advise their clients.

Despite its strengths, at only fifteen minutes long there is an inevitable detail deficit in this podcast. Some complex aspects of surrogacy are not mentioned at all. Particularly given the US context, it is surprising that insurance is absent from the discussion. This may be as assisted reproduction specialists do not directly advise on this. Nonetheless, the suggestions on how to make effective referrals to other medical or legal professionals are equally as applicable here. As observed in the podcast itself, attempting to save money by cutting corners in surrogacy can cause heartbreak. Both medical and legal professionals should therefore be encouraging parties to explore other ways to make surrogacy more affordable.

Additionally, there are aspects of surrogacy which are mentioned only superficially. For instance, the interviewee gives an outline of the provisions that are included in gestational carrier arrangements. As these contracts are often between thirty and fifty pages long, this is inevitably abridged. Even aspects that are referred to, however, are not discussed in depth. For instance, the attorney mentions the 'lifestyle changes' that surrogates are expected to comply with. They note that their contracts include the basic changes expected of any pregnant person (presumably meaning no alcohol consumption, no smoking etc), as well as deference to medical recommendations. Yet this skates over the extent to which these provisions can impact the life of a gestational carrier. From travel restrictions to essential oils, not all of these restrictions necessarily featured in their own previous pregnancies.

Though this is a podcast for medical professionals rather than people considering surrogacy for themselves, it might still be said that ASRM members should also have a more precise awareness of what these arrangements stipulate. This would allow them to better tailor the advice that the parties defer to. Similarly, they could better support anyone who may be struggling to adjust to the intensity of these arrangements.

Surrogacy is an area of law that both varies dramatically between jurisdictions and is unusually fast moving. The fact that these cross-disciplinary conversations are taking place, therefore, is doubtlessly important. Given the legal, medical, and emotional complexities of these arrangements, however, a fully comprehensive picture could not be achieved in a fifteen-minute podcast. It should be treated as a general overview on which assisted practitioners can build through further research and communication.