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Surrogacy is fraught with legal risks. (See Chapter 24.) Medical opinion on surrogate parenting ranges from outright advocacy to harsh condemnation. As a legal matter, physicians have no duty to participate in surrogacy arrangements and may violate the law by doing so in some states. ACOG has published a thoughtful guide to physician participation in surrogacy arrangements.[197] The core recommendations from this guide are reproduced here. Physicians who choose to participate in surrogacy should carefully consider these recommendations. If they choose to deviate from them, the reason for this deviation should be discussed in the medical record. While ACOG carefully declines to call these standards of care, it is clear that the courts will not be so reticent.

The ACOG recommendations first deal with decision making for the pregnant woman's medical care:

In the committee's view, the genetic link between the commissioning parent(s) and the resulting infant, while important, is less weighty than the link between surrogate mother and fetus or infant that is created through gestation and birth. Thus, in the analysis and recommendations that follow no distinction will be drawn between the usual pattern of surrogate parenting and surrogate gestational motherhood.

This recommendation is at odds with many who advocate that pregnant women have a right to contract away their authority over their own medical decision making. It also accepts the legal notion that paternity is determined by societal convention rather than being rigidly bound to genetics. We support the treatment of the pregnant woman as the sole medical decision maker as being ethically and legally sound. To allow a woman to contract away the right to control her own health would be to institute contractual slavery. Preventing binding contracts to give up the infant after birth only reiterates the adoption laws in most states.

[197]ACOG Committee Opinion 88: Ethical Issues in Surrogate Motherhood. Committee on Ethics, November 1990.

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