INTENT vs. BEST INTEREST OF THE CHILD: Who keeps the baby?

In a case that is sweeping the UK, a surrogate has decided to keep a child she gestated, but to whom she has no genetic connection.  This case prompts us to consider why we might elect to NOT pursue surrogacy in certain jurisdictions.

Generically, there are two mechanisms by which surrogate babies are transferred to their Intended Parents; “best interest of the child” and “intention of the parties”.

The “best interest of the child” is a standard used by the courts taking into consideration all factors that affect the child and their well-being, including familial stability, financial support, and possibility of abuse.

The “intention of the parties” is a standard used by courts and typically memorialized through statutes where parents who have contributed to and intended for the birth of the child to occur are the legal parents of the child. The Commissioning Couple is therefore the presumed natural parents. An example of this standard is the statutory law governing surrogacy in Florida. With this legal framework, a carrier mother who is not genetically related to the child born to her as a result of a surrogacy agreement would have no legal standing to keep the children.

The referenced UK case is an example of how determining parentage based on traditional familial standards may not be in the best interest of all parties.  The genetic parents do not have custody of their children after contributing their genetic material and years of emotional and financial strain. On the flip side, here is a woman who spent 9 months carrying and caring for them, now deciding their fate and, to a certain degree holding the genetic parents hostage via child support obligations.

Ultimately jurisdictions are still divided on how to approach legal parentage in assisted reproductive scenarios.  How do you think this case should end up?

ARE YOU READY FOR SURROGACY? A Look at the Journey from the Mental Health Perspective

Gestational surrogacy is legal and permitted in many States; however, the legal and medical requirements for each State can vary. In Florida, for example, the Intended Mother cannot be able to physically gestate the pregnancy to term or it must be a risk to her or the fetus’ health, the parties must be at least 18 years of age, and there must be a binding and enforceable contract in place.  These statutory requirements are echoed formally or informally within all States which welcome surrogacy. In addition to the statutory requirements, there are many financial, medical and mental health safeguards put in place by the practicing professionals in the field. These safeguards are practices that have been adopted by the most experienced and established professionals in an effort to provide ethical and appropriate boundaries to better protect all of the parties in these arrangements.

Safeguards which are mirrored by the better professionals include: the parties be at least 21 years of age and the Carrier must have had her own children prior to serving as a Carrier.  Certain professional organizations have been very active to set out safe practice requirements.  The American Society for Reproductive Medicine (ASRM) warns, “Gestational carriers have a right to be fully informed of the risks of the surrogacy process and of pregnancy, should receive psychological evaluation and counseling, and should have independent legal counsel.” In terms of when this occurs, the delivery of mental health counseling and screening occurs prior to the start of any medical procedures involved in the surrogacy process and both Intended Parents and the Carrier will participate.

Mental Health Pic

In an Ethics Committee opinion, the ASRM explained the importance and purpose for counseling. “Each participant should receive counseling regarding their expectations for the relationship and the risks of not having those expectations met. Effort should be made to have the participants evaluate whether their goals and expectations are congruent.” Counseling is especially important for non-traditional families (i.e. single parents, same sex parents, non married couples, etc) where there are additional medical, emotional, social and legal issues.

I interviewed two licensed mental health counselors who specialize in infertility counseling and screening. Andrea Bryman, a licensed marriage and family therapist in California, got into this line of work due to her own issues with infertility and a desire to help others. She shared, “The hardest part for me going through infertility was relinquishing control and recognizing that you have no control over whether you conceive and if you will hold a pregnancy.” This is a common feeling among Intended Parents and an issue addressed through counseling. There are also risks to consider outside of the Intended Parents’ infertility. Kathy Fountain, a licensed mental health counselor in Florida, looks for emotional and social stability; “I like them to be realistic in their expectations about the possible complications of pregnancy and the possibility of a less than perfect experience.”

There are many things for Intended Parents to consider and that should be addressed prior to a surrogacy. The American Bar Association’s Committee for Assisted Reproductive Technology Law has a set a model rules that jurisdictions can adopt or rely upon. Section 301 of the Model Rules requires mental health consultations for all parties to the surrogacy. The Rules specify that the counseling for the Intended Parents be meant as an evaluation of their ability to participate in third party reproduction and not their ability to be a parent. Considerations to be addressed include: how they feel about terminating the pregnancy, the level and frequency of contact with the Carrier during and after the pregnancy, birth requests, and having resolved to the fact they are unable to carry a pregnancy. It is important to note however, that the mental health evaluator’s job is to help the Intended Parent on this journey and NEVER to arbitrarily deny any Intended Parent the right to procreate.

When evaluating the Carrier, the same issues that are discussed with the Intended Parents are discussed her as well. As Kathy puts it, “(b)ecoming a surrogate is one of the most interesting and challenging things a woman can undertake” and emphasizes that the Carrier must be ready to face those challenges. So, in addition to the factors above, the Carrier must also show an awareness of the medical & emotional risks, have a positive experience with previous pregnancies, provide good motivation for wanting to be a Carrier, and very importantly, demonstrate a solid support system.

Both mental health professionals I interviewed agreed that the social and emotional support of the Carrier was a crucial and key component when screening the Carriers. Andrea states, “So much of the focus is on the pregnancy and Intended Parents that it’s good for a surrogate to have someone who is supporting her and someone she can talk to.” This is important post birth as well when the Carrier’s part is over in most cases. Another issued tackled when needed, is a universal concern of Intended Parents that the Carrier will want to keep the child. This is also addressed and noted in the screening process. However, it is important to note that, in Andrea’s experience for example, after 15 years screening Carriers, most Carriers approach the process knowing the child is not theirs and with the intention of helping the Intended Parents. She points out that the women “look forward to the moment the Intended Parents see their child for the first time”. This intent from the Carrier is ultimately what every Intended Parent wants. Ultimately, it is a tremendous task and as Kathy notes, the women have to be ready for the challenges that may arise and seeking professional expertise is key.

Overall there are also several considerations that overlap both parties during this stage of the process, including history of mental illness, substance abuse, sexual abuse, financial instability, history of keeping relationships and overall motives to enter into this type of agreement. All of these factors are considered to ensure that the process is enjoyable and everyone’s goals are met. The sooner the parties can be open and honest about what they want, the better the journey will be. Andrea advises that it is important to remember that no one can read minds and the danger of assuming what may happen. Seeking expertise from professionals is one more step to ensuring a great experience and that everyone is on the same page.



Andrea Bryman is a licensed marriage and family therapist from California specializing in egg donation and surrogacy assessment. For more information or to contact please visit her site here.

Kathy Fountain is a licensed mental health counselor in Florida founder of Kathy Fountain Fertility Counseling. For more information or to contact please visit her site here.

Robert Terenzio, Esq., To Speak at AARTA Conference

Charleston Assisted Reproduction Technology Conference

Robert T. Terenzio will be speaking in Charleston on November 10, 2013, with other legal experts on the subject of Assisted Reproduction Technology.

Orlando, FL, November 05, 2013 –(– Ethics, contracts and procedure will be among the many Third Party Reproduction topics to be discussed at the Mills House, Charleston, South Carolina, on Sunday afternoon, November 10, 2013.

Robert T. Terenzio, a Florida attorney with over 10 years of experience in this area of the Law, will be speaking with other legal experts on some of the ethical, contractual and procedural aspects of ART. The presentation will include information on the ethical and legal precedents to drafting ART contracts so that intended parents may expand their families in a legally secure, predicable manner.

This presentation is one part of a multi-day, comprehensive program organized by AAARTA, an organization promoting best legal practices within the assisted reproduction area.

About Robert T. Terenzio, Esq.
A graduate of Quinnipiac University School of Law in Connecticut, and a member of the American Bar Association, Assisted Reproduction Technology Committee, Robert T. Terenzio has extensive medical and legal education at the post-graduate level. Robert who is known as a dynamic speaker, has addressed professional and lay groups, both domestic and international on these topics. For more information, visit