I Want To Put A Baby In You: Zika! And Its Effects On Surrogacy Contracts

When it comes to pregnancy, there are a million fears and worries. Unfortunately, to add to the anxiety of welcoming a new baby into the world, the Zika virus has arrived in the United States. At first, the only patients suffering from Zika in the U.S. had contracted the virus in other counties. Now, however, Florida residents have been infected with the virus while present in the country. Sadly, Americans in other states may also be affected soon.

While generally causing only cold-like symptoms in the infected, the Zika virus can have devastating effects on a fetus carried by an infected pregnant woman. Specifically, microcephaly, a condition where a baby is born with a smaller head than usual and severe brain developmental issues, has been linked to Zika-infected pregnancy.

Unsurprisingly, the outbreak is affecting the already difficult attempts to contractually negotiate the details of a pregnancy in a surrogacy arrangement.

Restrictions on Travel.  A surrogacy agreement spells out the understandings and obligations between intended parents (the person or people who want a baby), and a surrogate who carries a baby. Fear of Zika is influencing a number of those contractual provisions.

Standard surrogacy agreements generally already contain restrictions on a surrogate’s ability to travel. The main reason is to ensure that the surrogate is in a surrogacy-friendly state when she gives birth. Otherwise, the surrogate might travel to a state, such as Michigan, that will not recognize the intended parents’ rights to their child.

Travel restrictions also deal with general safety concerns for the surrogate and the fetus, often asking that she stay within a certain radius of the hospital at which she intends to give birth when she is further into the pregnancy.

Now, contracts are being revised to specifically prevent surrogates from traveling to Zika-infected areas.  And because that map is continually changing with the areas of concern growing, it may require the surrogate to keep up with CDC reports on at-risk areas any time she is considering traveling. And, if not prohibiting her travel outright, the contract may require her to receive prior approval from both her doctor and the intended parents.

Restrictions on Sexual Activity. Yep, a surrogacy contract lays out (no pun intended) when a surrogate can and can’t have sex. Prior to an embryo transfer to the surrogate’s uterus, she is put on medication to increase fertility and the success of the transfer. It’s important to the surrogacy arrangement that a surrogate not get pregnant as a result of sexual activity prior to the embryo transfer. As we saw in the hit Tina Fey-Amy Poehler film, Baby Mama, we do not want babies being made the old-fashioned way. (Also, we could have done without the next iteration, Sisters.) Additionally, sexual activity can of course risk the transmission of STDs that are harmful to the fetus.

Now, with Zika’s ability to spread through sexual activity, the sexual activity restrictions are taking on this additional concern. While earlier information indicated that sex might be safe with a partner returning from a Zika-infected area after a month, new reports are indicating that even waiting six months might not be safe. That’s a lot of cold showers!

Termination of the Pregnancy. Provisions in surrogacy contracts addressing the termination of the pregnancy are already some of the most sensitive and controversial. Generally, the parties agree that the intended parents can decide the reasons the pregnancy can be terminated, and they can ask the surrogate to agree to those reasons ahead of time. At the same time, they can insist that a surrogate not terminate the pregnancy against the intended parents’ wishes. But as you may have expected, many lawyers practicing ART law consider these provisions to be unenforceable as against public policy.

Termination provisions are now facing additional scrutiny by intended parents who may be unprepared and unwilling to raise a child with microcephaly. Although aspects of these provisions may be unenforceable, they force a difficult but valuable conversation between the parties that can reveal whether they are on the same page if the situation of a Zika infection arises.

Testing. A surrogacy contract also lays out the testing a surrogate will go through during the pregnancy. Alternatively the agreement may simply include a provision that the surrogate will undergo all tests recommended by her obstetrician or IVF physician. The Zika outbreak introduces a whole new level of tests to the mix, including even fetal MRIs to determine fetal brain development.

While restrictive contractual provisions in a surrogacy contract are nothing new, the Zika virus is adding new complications to the surrogacy negotiation process. As it continues to spread, Zika presents a new and very real threat to pregnant women. These frightening considerations must be taken seriously in all surrogacy arrangements, while of course being calmly considered in a contractual agreement.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at [email protected].