Surrogacy Restrictions: What Surrogates Can and Can’t Do Legally and Ethically

Our previous blogs have discussed three tricky provisions in a surrogacy agreement and  what’s in a surrogacy agreement. One major part of a surrogacy agreement are the sections regarding the surrogate's behavior during pregnancy. These activity restrictions aim to protect the developing fetus, but they also raise important legal and ethical questions about bodily autonomy and enforceability. This article explores common activity restrictions in surrogacy agreements, their legal status, and best practices for intended parents and surrogates. 

Common Activity Restrictions in Surrogacy Agreements 

Surrogacy agreements typically include restrictions that fall into several categories: 

Health and Medical Care 

• The duty to attend medical appointments and take medication as instructed by the physician; 

• Agreeing to certain recommended medical procedures such as prenatal diagnostic testing, induction and cesarean sections; 

• Obtaining permission from the physician before taking over-the-counter medication, alternative medicine, massage, acupuncture, or chiropractic procedures. 

Lifestyle Choices 

• Restrictions on travel, especially by plane and in later pregnancy stages 

• Prohibitions on alcohol, tobacco, recreational drugs, and certain medications 

• Dietary restrictions (e.g., avoiding raw fish or meats, unpasteurized dairy, high-mercury fish) 

• Limitations on high-risk physical activities like strenuous sports or dangerous activities; 

Environmental Considerations 

• Restrictions on exposure to certain chemicals or environmental hazards (x-rays) 

• Limitations on occupational risks (e.g., heavy lifting, exposure to toxins) 

• Guidelines regarding pet contact (particularly cat litter boxes due to toxoplasmosis risk) 

Legal Enforceability of Restrictions 

The enforceability of these restrictions will be based on contract law. However, some states such as Washington or Texas state will allow a surrogate to make decisions to protect her health or the health of the fetus.  

Remedies for Breach 

Even when activity restrictions are included in an agreement, the available remedies for breach may be limited as: 

• It may be difficult or impossible to discover the breach because the intended parents cannot reasonably monitor what the surrogate eats or does. 

• The contract may state that if the surrogate does not cure a breach, payments can be stopped. Some attorneys and surrogates will not agree to this provision. 

• Termination of the contract usually will not be possible once pregnancy is established. 

Surrogate's Bodily Autonomy 

The surrogate retains fundamental rights to bodily autonomy which may not be contracted away. Courts will be reluctant to compel specific performance for activities or medical treatments. 

Best Practices for Activity Restrictions 

Based on legal precedent and ethical considerations, we recommend the following approaches: 

For Intended Parents 

• Focus on medically-supported restrictions rather than personal preferences. 

• Discuss expectations openly during the matching process. 

• Be reasonable in your requests; no one likes to be micromanaged or mistrusted. 

• Include updates and communication protocols so you can be informed about the progress of pregnancy and when there are important medical decisions. 

For Surrogates 

• Be honest and open about your willingness to accommodate lifestyle modifications 

• Discuss potential concerns before signing the agreement with your family and attorney. 

• Don’t sign unless you understand your rights and the potential consequences of non-compliance under the contract. 

• Maintain open communication about any difficulties following or understanding restrictions. 

For All Parties 

• Work with experienced surrogacy lawyers familiar with your jurisdiction. 

• Consider mediation through a mediator or a mental health professional for resolving contract disputes. 

• Emphasize communication and cooperation rather than punitive measures 

• Work on building and extending trust throughout the relationship 

Conclusion 

Activity restrictions in surrogacy agreements are an important aspect of the contract process but must be balanced against the surrogate's individual rights of privacy and right to make decisions about her body. The most successful surrogacy arrangements are those based on mutual respect, clear communication, and reasonable expectations. As legal enforceability of these provisions may not be guaranteed, the spirit of cooperation between parties will be the best measure of in the arrangement. 

If you're considering becoming a surrogate or intended parent, consulting with an experienced reproductive attorney is essential to navigating these complex issues. Tsong Law Group specializes in surrogacy and gamete donation law and can provide personalized guidance for your specific situation. Contact us now.

Disclaimer: This article provides general information and should not be construed as legal advice. Laws regarding surrogacy vary by jurisdiction and change over time. Please consult with a qualified attorney for advice specific to your situation.