Few options exist for same-sex partners or heterosexual partners unable to bear children when deciding to have a child. A couple may adopt, but if they want a biological child, the couple must employ a surrogate mother. Two types of surrogacy exist. Gestational surrogacy involves extracting an egg and sperm from donors and placing the fertilized egg into the surrogate’s uterus. This procedure proves to be very expensive, and the resulting child proves not to be biologically related to the surrogate. The sperm used may be from a male within the employing couple, or it may be provided by a donor.
The egg may be extracted from the wife, or it may be from a donor as well. Traditional surrogacy involves artificial insemination of the surrogate with the sperm of the father or sperm of a donor resulting in the child being biologically related to the surrogate mother. Surrogacy may provide nurses with awkward and confusing situations when providing care to the surrogate mother and the baby. Depending on the surrogacy contract and the state laws, the surrogate mother’s rights during pregnancy may differ from a traditional pregnancy, and the transfer of custody from the surrogate mother to the employing couple may manifest complications.
In the beginning of a surrogacy, the woman acting as the surrogate mother must meet with legal counsel in order to review her rights as a surrogate as well as the rights of the infertile couple. Usually, surrogacy requires the woman to give up her rights when acting as a surrogate mother. This opposes the outcomes of the women’s rights case, Roe v. Wade, which “gave strength to a woman’s right to privacy in the context of matters relating to her own body, including how a pregnancy would end” (Pozgar, 2016, p. 80).
Therefore, when a surrogate mother enters into a contract with an infertile couple, she no longer receives the right to privacy or the right to deciding the outcome of the pregnancy. But, this raises the ethical issue of abortion. Does a surrogate mother maintain the right to abort the child? A surrogacy contract states that the surrogate no longer fosters the right to decide the outcome of the pregnancy, but this stands in opposition to a woman’s right to choose what happens to her own body and her pregnancy. Furthermore, the infertile woman may accompany the surrogate mother to certain medical examinations and tests.
This also opposes the Health Insurance Portability and Accountability Act (HIPAA) privacy rule which ensures a patient’s right to privacy. A surrogacy contract allows the infertile couple to learn healthcare information about the surrogate mother. In addition to the rights of the surrogate mother, further issues may occur if the surrogate is married or currently is in a committed relationship. The surrogate’s husband may be observed to be the biological father in some states. More legal issues may ensue if the husband of the surrogate does not agree to the surrogacy or the surrogate contract.
While pregnant, the surrogate and her husband or partner must sustain sexual abstinence during certain stages of the pregnancy. Some states may see a surrogate’s steady relationship and deem the partner as a common law husband. These men may be subject to sexually transmitted disease testing since certain diseases warrant dangerous effects for the surrogate and baby. In the end, nurses must be knowledgeable about the parental situation within each pregnancy that they care for. Complicated relationships between biological parents within society today continue to provide difficult situations upon the delivery of a newborn baby.
However, the addition of surrogate mothers and surrogacy contracts only add to the relationship confusion a nurse must decipher when caring for a woman during and after pregnancy. Once a surrogate mother has given birth, further ethical issues arise when placing the names of the parents on the child’s birth certificate and assigning custody of the child. Court appearances, testimonies, and the contract or agreement provides the court with enough evidence to assign the mother and father of the unborn child during the pregnancy.
However, if circumstances arise during or after pregnancy that jeopardize the best interest of the child, the court may change the prior decision. A surrogacy contract in 2002 within the state of Pennsylvania included a surrogate mother named Danielle Bimber who agreed to carry a child for James Flynn and his partner. She was impregnated with Flynn’s partner’s egg and Flynn’s sperm, so she was not biologically related to the fetus. She eventually gave birth to male triplets. However, upon birth, Bimber refused to transfer her custody of the triplets to Flynn due to what she claimed to be “a change of heart”.
Flynn filed a custody dispute, and Bimber responded with a counterclaim for custody. The court declared Flynn the legal parent of the triplets due to the fact that it was not Bimber’s egg, but the Superior Court did not come to this conclusion until 2006 when it awarded Flynn custody. Unfortunately, the children resided with Bimber for the first two and a half years of their lives, which also questions if changing custody to Flynn was in the best interest of the children (Turley, 2008). This situation highlights the importance of surrogacy contracts and the state of Pennsylvania’s acknowledgement of them.
However, no federal laws exist to oversee the disputes within surrogacy arrangements, and state laws prove to be deficient in governing surrogacy contracts. As a labor and delivery nurse, situations like the one above would prove confusing. The nurse in this situation would question the correct ethical decision to allow the infertile couple to participate in the delivery of the baby, the aftercare of the baby, and the education in which is provided to the mother immediately after giving birth. But, this poses an even further ethical dilemma, because the nurse may not have access to the entire surrogacy contract or birth plan.
The contract may state specifics on the birthing plan and how the birth process is to be carried out. The article, Surrogacy: A Midwife’s Experience to Providing Care, provides surrogacy birth plan examples like if the intended parents plan to cut the umbilical cord, if the intended mother plans to breast feed by induced lactation, and whether the intended parents or surrogate mother intend to practice skin-to-skin with the baby after birth (2015). In addition to the birth plan, a nurse may question who may make the initial decisions for the baby. These immediate decisions include immunizations, medical testing, and circumcision.
If a dilemma like the one between Bimber and Flynn occurs, how would a nurse proceed caring for a newborn during a custody dispute in the immediate aftermath of birth? Hopefully, an ethics specialist within the nurse’s hospital is able to provide guidance for nursing care while establishing a plan to resolve the custody question. Another ethical dilemma that surrogacy provides includes the monetary compensation that surrogate mothers receive for their services. Some view this payment as a type of prostitution, and “surrogacy is decried as exploitation of a woman’s body, as classist and sexist, and the marketing of babies” (Abrams, 2015).
Usually, during the contract process the infertile couple must state the amount of money being paid to the surrogate and the intended uses for which the money is meant. Sometimes the law restricts the money to be used for medical fees, cost of living, and legal fees. If any issues arise with the compensation of a surrogate mother, the problems must be reported. If the court finds any compensation to be out of order, some states may see the arrangement as baby-selling or prostitution, and jail time may even be served. Overall, dealing with a surrogate pregnancy may provide a confusing and stressful experience for the labor and delivery nurse.
Furthermore, nurses providing post-partem care for the surrogate mother and baby may encounter situations in which the surrogate mother and adopting parents disagree on the birthing process and the care of baby after birth. Physicians may look to the American College of Obstetricians and Gynecologists (ACOG) and patients may look to the American Society of Reproductive Medicine for guidance on surrogacy. “However, little information is available for nurses and other healthcare providers to guide care in the hospital setting.
Many hospital policies do not address surrogacy or are not flexible enough to address variations that likely exist in these complex cases” (Cavin-Wainscott, 2013). If an issue arises, nurses must alert their superiors to the problematic parental situation and involve ethical representatives if possible. Most hospitals employ an ethics counsel in which legal counsel also participates. Therefore, if disputes involving surrogacy contracts arise, the legal representatives of the infertile couple, the surrogate mother, and the hospital will need to be alerted in order to solve the dispute for the best interest of the child.