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Lawyers step in when surrogacy deals ‘go off  the rails’
Canadian fertility law specialist Ellen Embury

13 Jun 2022 / ethics Print

Lawyers must step in when surrogacy deals ‘go off rails’

The risks of exploitation of surrogate mothers can be managed, Canadian fertility law specialist Ellen Embury has told the Oireachtas committee on international surrogacy (9 June).

Preventing exploitation needed comprehensive psycho-social evaluation by ethical clinicians, she said.

Paying only reimbursable expenses removed the stress in any dialogue about money between “commissioning” parents and surrogates, she added.

Legal advice

Independent legal advice for both parties, given by an officer of the court, was also part of essential protections, the lawyer said.

Lawyers have an ethical duty to ensure that surrogates are undertaking the pregnancy voluntarily, without force or coercion, and that intended parents understand that they are not able to ask for anything with which a surrogate is not happy.

Most surrogates receive between Can$25,000-$35,000, and are compensated for lost wages during pregnancy, and for up to six weeks post-birth, though this could extend to 15 weeks.

'State of desperation'

Evaluations should screen out those surrogates who are in a “state of desperation”, the lawyer said.

“I do believe that there is a possibility of exploitation from a surrogate's domestic partner,” she said.

Domestic partners did not have any presumptive rights in the process in Canada, she added, but should be included as part of the process, so there would not be questions about the surrogate being forced to participate.

In her practice, Embery said that she had seen pressure from “commissioning” parents to reduce or minimise expenses, to their own benefit.

This aspect should be outsourced to a third-party agency to reduce that tension and ill-feeling that could occur over discussions related to finances, she suggested.

“Having lawyers involved at that stage is also really, really important,” she said.

“The reality is that we spend a lot of our time stepping in ... where things go off the rails,” she stated.

Embury said that exploitation could occur when a surrogate mother was pressured to do something she did not wish to do; for instance, implanting two embryos to carry twins.

Pressure to abort

“There are always discussions around termination or abortion. In Canada, the law is crystal clear. A woman does not do anything with her body that she does not want to do.

“Nobody can make you terminate if you're not comfortable terminating,” she said, adding that often her job as a lawyer was to explain this to surrogates.

“Yesterday, the Supreme Court of Canada released yet another decision which indicates the best interest of the child is paramount, and the best interest of the child is not related to a genetic link,” she added. 

“Any legislation which proposes a genetic link is, in my opinion, discriminatory,” she said.

Refusing surrogacy deals to a physically disabled couple because they could not produce an egg or sperm would be problematic from a human-rights perspective, she told the Irish politicians.

Surrogate Jennifer Armstrong told the committee that she felt that surrogacy agencies could be better regulated in Canada.

“There really isn't that much regulation,” she said.

Armstrong added that, as a surrogate, she had no desire for any more children of her own, and that the idea of being listed as a mother on the birth certificate was “crazy” to her.

“That would make me not do it, because I don't want to be responsible for another child,” she said.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland