The Digital Revolution in Surrogacy:
The digital age has transformed how intended parents, gestational carriers, and surrogacy agencies connect. Social media platforms provide a space for open discussions, sharing experiences, and even matching intended parents with potential gestational carriers. However, with this convenience comes a range of legal considerations that should not be overlooked.
Privacy and Confidentiality:
Maintaining privacy and confidentiality is important in surrogacy arrangements. The open nature of social media can possibly expose sensitive information, jeopardizing the privacy of all parties involved. Parties should establish clear restrictions in their surrogacy agreement to protect the identities and personal details of both intended parents and gestational carriers. Prior to the agreement being established, the parties should be aware that such restrictions will be established in the future, and to keep things such as the identity and other characteristics of the other party they are matched with in confidence. Gestational carriers may have agreements with the agency that their images or names may be used for social media, but the parties should make their agency aware of any agreement to keep the other’s identity secret. The parties should monitor each other's social media feeds to ensure no violations of the confidentiality provision occur and inadvertent disclosures of information (such as a name on a wristband or ultrasound photo) are also removed.
Social media groups are also places where many users air their grievances or seek confirmation that they are right in a disagreement. If the parties have a dispute, it’s strongly advisable not to put it on social media where anyone in a group may be able to see it or spread it. Once someone involved in the agreement finds out another party made a negative post about them, it will be hard for the parties to reconcile their differences. The parties should leave the dispute process to the agency, the attorneys, or what is provided in their surrogacy agreement.
Social media groups are also places where surrogates can find out what other surrogates are making in compensation. We do not discourage the sharing of compensation information (if not prohibited by the contract), but suggest that surrogates be careful of what they post online and be mindful that compensation packages vary but once the match is agreed to, the changes to compensation are frowned upon by the agency and intended parents.
Legal Implications of Online Matching:
While social media groups can be useful in facilitating potential matches between intended parents and gestational carriers, the parties must protect themselves by not over-investing in matches that might not be feasible. The advantages and potential risks associated with using social media apply to potential recipients and donors for sperm, egg, and embryo donation matches. Some issues that make candidates not feasible for surrogacy include married surrogates who have spouses who do not consent, surrogates living in foreign countries or in states that are unfriendly to surrogacy, surrogates with no live-birth experience, and ones relying on public benefits. Consulting with an experienced assisted reproductive technology (ART) attorney at the early stages of an independent match is essential to ensure that all legal requirements for the surrogate’s state are met and that the rights of all parties are protected.
Scams and Impersonation Risks:
The internet and social media are home to many scams, and the surrogacy world is no exception. As scammers have realized intended parents are desperately seeking surrogates and that money can be made, they may impersonate surrogate candidates with the desire to scam money or emotionally manipulate another party. It is crucial for intended parents to exercise caution, which include background checks (which attorneys can perform) to verify the identity and any criminal history of potential gestational carriers or their partners. Even then, medical records and psychological screenings are needed. Intended parents who are not experienced may benefit from working with a surrogacy consultant or agency to assist them in getting a surrogate medically cleared, while also working with an attorney for legal drafting. Independent journeys are not for everyone, those who opt for this route should be aware that the legal filing process with the court requires meticulous attention. We discuss some of the advantages and disadvantages here.
Conclusion:
As surrogacy continues to adapt to the digital age, staying informed about the legal concerns surrounding online interactions is vital. Both the advantages and potential risks associated with using social media will apply to the potential matches for recipients and donors in sperm, egg, and embryo donation.
If you need drafting or review of your surrogacy or gamete donation agreement, Tsong Law Group is ready to assist you. We have experience in complex negotiations and resolving difficult contract issues. Contact us today.