BARGAINING ABOUT BIRTH: SURROGACY CONTRACTS DURING A PANDEMIC.

• Author: Rebouche, Rachel

ABSTRACT

Surrogacy contracts depend on the exchange of information. Intended parents want information about the surrogate's pregnancy to make decisions regarding prenatal care, during-pregnancy behavior, and birth. Contract provisions can cater to those desires and support the broader assumption that parents should seek as much prenatal information as possible. Yet surrogates have the right, by statute and as patients, to manage their prenatal care and thus control information about their pregnancies.

During the COVID-19 pandemic, travel restrictions, limits on hospital visits, vaccine mandates, and the threat of COVID contraction--with evolving understanding of effects on pregnant people and resulting children--upended the expectations of intended parents and surrogates. If anything, the pandemic encouraged intended parents to surveil the health of gestational surrogates because of the heightened threat of illness. The result was a change in contracting practices that ranged from incentives, such as "stay-at-home " stipends for surrogates, to punitive measures, like the threat of liability under contract clauses governing prenatal behavior. More broadly, the pandemic has underscored the fragility of surrogacy arrangements and the surprising irrelevance of statutory protections when disputes about prenatal care arise. This essay assesses the challenges of negotiating, drafting, and enforcing gestational surrogacy contracts during the pandemic. It argues that new legislation in several states, which attempts to protect the interests of intended parents and surrogates through rights to parentage and bodily autonomy, respectively, is unlikely to affect what happens on the ground.

Indeed, when conflicts arise, parties look to professionals, such as lawyers and fertility brokers, who in turn continue to rely on largely unenforceable contract provisions to diffuse conflict. These practices highlight the power of professionals and agencies--repeat players with their own agendas. Specifically, the question of vaccination highlighted the limits of honoring statutory and contractual commitments to surrogate autonomy and belie the assumption that surrogacy is an act of altruism, rather than economic exchange.

TABLE OF CONTENTS I. SURROGACY CONTRACTS: LAW ON THE BOOKS A. The Legal Landscape B. Contemporary Protections for Surrogates II. SURROGACY CONTRACTING: PRACTICES ON THE GROUND A. The Role of Lawyers B. Relational Contracts C. Contract Compliance III. PANDEMIC CONTRACTS A. Pandemic Precautions and Vaccinations B. Altruism and Exchange CONCLUSION INTRODUCTION

The COVID-19 pandemic created a crisis in contract law. (1) Across a wide range of transactions, contracts were breached, re-negotiated, reformed, or abandoned because of the pandemic. (2) Gestational surrogacy contracts-under which people become pregnant after in vitro fertilization (IVF) and give birth to children to whom they are not genetically related--offer one of the most striking examples of altered contractual expectations and obligations. (3) Restrictions on travel at the commencement of the pandemic, and the introduction of vaccinations, have shifted practices among surrogates, intended parents, and the entities that match and manage them. (4) Parties navigated agreements that evolved as circumstances changed, but, as this essay endeavors to illustrate, they wrestled with problems endemic to the field. (5)

Consider the travel restrictions in place at the beginning of the COVID19 pandemic. Intended parents were unable to travel for the birth of infants. (6) Though also true for parties who lived in the United States, the consequences of travel bans were most vivid for international surrogacy arrangements. (7) News stories documented makeshift care arrangements as intended parents struggled to enter the countries where births had occurred. (8) In one such account, intended parents walked across the Belarus-Ukraine border to collect an infant who had been cared for in an orphanage for several weeks because of the parents' travel delays. (9) In another instance, an employee of a Chicago-based surrogacy agency cared for two infants for five months while the intended parents from China waited for travel restrictions to abate and for the visas and passports needed to enter, as well as leave, the United States. (10)

Domestic gestational surrogacy has not received the same media attention as international surrogacy but has experienced its own set of disruptions. Hospital visitation restrictions made being present at birth difficult for intended parents. (11) Beyond birth plans and travel, intended parents and gestational surrogates confronted a novel set of questions related to prenatal decision-making--related to wearing masks or receiving a vaccine, for instance--but the underlying conflicts were familiar. Although gestational surrogacy agreements now address issues particular to COVID contraction, those contracts implicate longstanding concerns about the extent to which intended parents can dictate prenatal decisions and the nature of the relationship between the parties. For instance, parties to gestational surrogacy contracts have diverged on the question of vaccination: some intended parents seek to mandate surrogate vaccination, while others attempt to prohibit the surrogate from taking a vaccine. Early on, the question of vaccination was complicated by unclear advice about whether pregnant people should receive a vaccine. As that advice encouraged vaccination during pregnancy, attitudes about purported risks did not shift uniformly. The disagreements between parties became more visible as fertility agencies started to reassure clients and explain COVID protocols.

As surrogacy contracts began to incorporate language about vaccination status, other provisions addressed prenatal behaviors to reduce the risk of COVID contraction. (12) Measures include "stay-at-home" stipends (paying surrogates additional compensation to offset missed work if they agree to limit outside engagement), as well as attempts to ban activities deemed risky in light of the pandemic.

Although the subject matter of some provisions of post-2020 surrogate contracts are new, efforts to control prenatal decision-making are not. Since the inception of gestational surrogacy contracts, intended parents and their representatives have sought to manage prenatal behavior in order to assure a healthy pregnancy and birth. (13) The concern that such management would encroach on surrogates' autonomy is reflected in contemporary state statutes that attempt to protect surrogates' agency and privacy as patients while acknowledging that a core aspect of the contract entitles intended parents to some amount of pregnancy information and control. State laws, as the first part notes, are an important check against exploitation; however, those laws seldom address the work of intermediaries (namely, lawyers and agencies) who write contracts and structure the relationships of the parties. (14)

The COVID-19 pandemic spotlights the work of surrogacy agencies and the professionals employed by them--interventions that historically have been hard to map. A review of the websites of the national leading surrogacy agencies, seventy in total, depicts agencies' priorities in reassuring potential clients that surrogacy arrangements are secure and any resulting pregnancy will result in a healthy child or children. This essay, however, asks what happens to the balance of bargaining power between parties when surrogates have fewer options and intended parents contemplate additional risks. The pandemic may have deepened gaps in privilege between intended parents and surrogates. Surrogates, like all pregnant people, still had to seek prenatal care and rely on hospitals during birth. Surrogates were likely more dependent on surrogacy income because their jobs were disproportionately disrupted by the pandemic. While surrogates' vulnerability may have increased during the pandemic, the contracts to which they were subject became more onerous in terms of surveilling their pregnancies.

The current method of addressing vulnerability and risk through contractual terms, brokered with the assistance of professional intermediaries, may not adequately address potential bargaining inequality. In seeking to balance the interests of both surrogates and intended parents, state statutes focus on the rights claims of the parties and do little to change the context in which people negotiate those rights. More significantly, they do not regulate the powerful industry that matches surrogates and intended parents, which is the key driver of contract content and practice.

This essay proceeds as follows. The first part provides a background on the contemporary statutes that govern gestational surrogates. The next part explains why those statutes may have made little difference to the practice of drafting and enforcing surrogacy contracts. The final part describes how COVID, specifically as related to vaccination, has influenced contract terms, both challenging the efficacy of protections in state statutes and illustrating recurring dilemmas in gestational surrogacy.

1. SURROGACY CONTRACTS: LAW ON THE BOOKS

   Over the last ten years, newly enacted state statutes show a clear trend toward allowing gestational surrogacy. Recent legislation passed by New York, which was one of the few remaining states that banned surrogacy, provides an example of how modern laws regulate surrogacy contracts. Although New York's Child Parent Security Act (CPSA) emphasizes surrogates' rights to bodily autonomy, introducing the first Surrogates' Bill of Rights, (15) the Act mirrors other state laws that presume a contract is enforceable so long as it is in "substantial compliance" with the statute's procedural requirements. (16) This part offers a snapshot of state legislation, which seeks to check potential abuses of power, but may miss how contract...