Fortunately, with modern medical care, the death of a pregnant woman is a very rare event, but the risk is not zero. Sadly, this new mother died just 8 days after the birth of her triplets: Mother of IVF triplets died just eight days after giving birth. No one like to think about these kinds of tragic possibilities, but it is very important to think about exactly these kinds of things when entering into a surrogacy arrangement.
All parties to a surrogacy arrangement need to understand that death is an inherent risk of surrogacy. Most importantly, the surrogate needs to understand, and be willing to accept the risk, that she might die as a result of carrying someone else’s baby. By doing this favor for someone else, she is putting her own life at risk, and needs to consider the potential consequences to her own family. It’s not fun to think about that, is it? But only by thinking about this can a potential surrogate make the informed decision to proceed with the arrangement.
So, how can these issues be addressed in a surrogacy contract?
Typically, contracts require that the surrogate and her husband, if she has one, accept the risk of her death, and agree to release the Intended Parents (IPs) from liability if she dies. The IPs may have to purchase life insurance for the surrogate, to provide financial protection to her family. The parties will all have to agree on whether, in the event the surrogate becomes permanently unconscious (“brain dead”), the surrogate should be placed on life support for the sole purpose of continuing the pregnancy. And the surrogate will be entitled to make medical decisions relative to the pregnancy, such as termination, should her own life be at risk due to the pregnancy. These are just some of the issues we consider in surrogacy agreements.
A word of caution: drafting contracts that properly address these issues is not a do-it-yourself project. You need to work with an attorney who is familiar with this highly technical and complex area of law because it’s just too easy to mess these things up.
