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Public Policy Recommendations

Toward an Ethically Acceptable Public Policy on Surrogate Parenting Arrangements

An ethically acceptable public policy on surrogate parenthood will recognize that commissioning parents and surrogate mothers have divergent interests as well as interests in common. Because of the divergent interests, one professional person or agency should not attempt to represent the interests of both major parties to surrogate parenting arrangements. As in the case of organ donation and transplantation, public policy should require separation of roles to prevent apparent or real conflicts of interest. Further, because surrogate parenthood is in many respects analogous to adoption, the same kinds of safeguards that have been established for the practice of adoption should also be instituted for surrogate parenting arrangements.

In light of these general guidelines and the discussion above, the following specific policies are proposed:

Surrogate motherhood arrangements should be considered only in the case of infertility or other medical need, but not for reasons of convenience alone.

The surrogate mother and the commissioning couple should be regarded as distinct parties agreeing to cooperate for a defined purpose. Each party should be separately represented, both medically and legally.

Surrogate parenting arrangements should be viewed as preconception adoption agreements in which the surrogate mother is regarded as the mother for all medical and other purposes. After the birth of the infant, the surrogate mother can decide whether or not to place the child for adoption, in accordance with applicable local adoption rules and practices. This policy includes a specified period of time after birth during which the surrogate mother is free to depart from the preconception agreement and retain custody of the child. If she decides to place the child for adoption, the members of the commissioning couple will become the parents of the child.

While the committee is reluctant to propose a specific regulatory framework, it recommends that, for the near future, surrogate parenting arrangements be overseen by private nonprofit agencies with credentials similar to those of adoption agencies. Such agencies should seek to ensure that the interests of all involved parties are adequately protected. The agencies should conduct confidential counseling and screening of candidate surrogates and candidate commissioning parents. Their primary goal should be to promote the welfare of the future child, as well as the welfare of any existing children of the surrogate.

Plans for contingencies like the following should be carefully considered in advance by the commissioning couple, the surrogate mother, and the professionals involved in this reproductive arrangement: the prenatal diagnosis of a genetic or chromosomal abnormality; the inability or unwillingness of the surrogate to carry the pregnancy to term; the death of a member of the commissioning couple or the dissolution of the couple's marriage during the pregnancy; the birth of a handicapped infant; and a decision by the surrogate mother to retain custody of an infant conceived on behalf of, and typically with the aid of gametes from, the commissioning couple.

The contingency plans discussed by the parties to surrogate parenting arrangements should be written down to make explicit the intentions of the parties, to facilitate later recollection of these intentions, and to help promote the interests of the future child.

The surrogate mother, in consultation with her physician, should be the sole source of consent for medical decisions regarding pregnancy and delivery.

Whatever compensation is provided to the surrogate mother should be paid solely on the basis of her service in attempting to assist an infertile or otherwise medically handicapped couple; compensation should not be based on a successful delivery or on the health status of the child.[198]

Implications for the Practice of Obstetrics-Gynecology

The physician who participates in surrogate motherhood arrangements, provides fertility services or obstetric services for a surrogate, or provides counseling services should carefully examine all relevant issues, including legal, psychological, societal, medical, and ethical aspects. Simple, clear answers cannot be anticipated.

The following recommendations are offered as guidance to physicians.

Avoidance of Conflict of Interest

The physician should not have as patients both the commissioning couple and the surrogate mother. Conflicts of interest may arise that would not allow the physician to serve both patients properly.

Initiation of Surrogate Arrangements

When approached by a patient interested in surrogate motherhood, the physician should, as in all other aspects of medical care, be certain that there is a full discussion of ethical and medical risks, benefits, and alternatives, many of which have been surveyed in this statement. In particular, the physician should be sure that contingencies like those outlined in item 5 (above) have been thoroughly considered.

A physician may justifiably decline to participate in initiating surrogate motherhood arrangements.

If a physician decides to become involved in surrogate motherhood arrangements, he or she should follow these guidelines:

----The physician should be assured that appropriate procedures are utilized to screen the commissioning couple and the surrogate. Such screening should include appropriate fertility studies and infectious-disease and genetic screening.

----The physician should receive only usual compensation for obstetric and gynecologic services. Referral fees and other arrangements for financial gain beyond usual fees for medical services are inappropriate.

----The physician should not participate in a surrogate program in which the financial arrangements are likely to exploit any of the parties.

Care of Pregnant Surrogates

When a woman seeks medical care for an established pregnancy, regardless of the method of conception, she should be cared for as any other obstetric patient or referred to a qualified physician who will provide that care.

The surrogate mother should be considered the sole source of consent with respect to clinical intervention and management of the pregnancy. Confidentiality between the physician and patient should be maintained.[199]

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

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

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