Surrogacy and Circumcision

[Treece]

If anyone knows, please help me.

Ok, I want to be a surrogate. I have my children and I am very content with my family size. I have always (since I was a young girl) wanted to give this gift to another family. I have no objections to the type of family I help to create with one caveat, if the child I bear is a male child, I want him to remain whole. I would be heartbroken if I gave birth to a child and he was later subjected to this. So my question is, can I put that in the contract? I haven't looked too deep into it because I simply don't want to deal with the admonitions that I think will happen. I live in a high circ area and would probably end up not being able be a surrogate here (at least reimbursed). So, can I do that? Where can I look for more info? TIA

[rnra]

I have been involved with a few surrogate births, and in the ones I am aware of there really isn't a way to enforce that type of caveat.  The desire for the child to remain intact could be stated, discussed, and hoped for; but, the reality is that the parents of the child are the legal decision makers and the surrogate does not have any say in what happens with the child after he exits her womb. 

[Dan Bollinger]

And... it's a contract, which means you can put anything in it you want as long as it is not illegal. As far as I know, remaining intact is not illegal (yet!). I don't see a problem with this as long as you explain this up front to prospective clients. This gives parents who desire to cut their baby a chance to run screaming from the room. Contracts are give-and-take, tit-for-tat. So, you could put in a clause saying that if you circumcise him before the age of, say, one year, or for non-medical reasons thereafter, within 30 days they have to pay you (or give to Intact America) the sum of, say, $10,000.

[Frank Speaks]

As Dan Bollinger states above, a contract is merely a legal agreement by the parties reduced to paper and they are legally binding..  One party can simply walk away if they don't like the terms of the contract before they sign it.  However, they are legally bound by the terms of the contract if they sign it.

If the adoption agency will not allow you to put this condition in the contract, go find another agency.  I would also suggest putting a statement in your birth plan just in case the adoptive parents try to go around you.  This will leave the doctor and/or hospital liable  You could even write it in the contract that you or a doctor (your representative) be allowed to examine the baby before it leaves the hospital and be given access to it's medical records for a stated period. (6 months for example).

In reality, you are in the cat-bird seat here.  You call the shots.  The adoption agency wants to make their profit.  The adoptive parents want a child (very badly).  You are their avenue to both.  Without you, neither will happen.  Stand your ground.  You can call the shots.

Frank

[mama24-7]

I think for this reason, and many others, I could not be a gestational surrogate.  I simply could not help to create a brand new, innocent, helpless, person that the parents would/might do mean things to.  I'd contemplated offering it to a family member & a friend at different times.  Seeing the parents they are, I'm glad I did not do it.  I have nightmares as it is, thinking about how my nephew is treated, dreaming about the video of a circ I accidentally saw (I won't watch Penn &Teller's video on it again!!!), etc.  I simply feel too strongly about so many things.  

Sus

[MCatLvrMom2A&X]

You can have it put into the contract and you would need to discuss it in depth with the parents. For me I would be worried that they could get around it by finding a Dr who recommends circ because of what ever bogus reason they can come up with and have it done later. I would have to know without a shadow of a doubt they would not circ at all for any reason down the road and leave it up to the child later on. I would also have to know that they where aware of proper care and be not only be willing to leave the child intact but to be adament about it.

Yeah good thing I could never be a surrogate because I just dont think I could risk it.

[Super~Single~Mama]

Unfortunately, there really wouldn't be any way to enforce a contract provision prohibiting the circ of a baby that ultimately isn't yours. Your best bet (and really your only bet) would be to ask up front what their views on circ were, and if they were anything but completely and vehemently against it, not work with them. I just can't imagine that you would have legal recourse.

And... it's a contract, which means you can put anything in it you want as long as it is not illegal. As far as I know, remaining intact is not illegal (yet!). I don't see a problem with this as long as you explain this up front to prospective clients. This gives parents who desire to cut their baby a chance to run screaming from the room. Contracts are give-and-take, tit-for-tat. So, you could put in a clause saying that if you circumcise him before the age of, say, one year, or for non-medical reasons thereafter, within 30 days they have to pay you (or give to Intact America) the sum of, say, $10,000.

Unforunately, the bolded is not entirely true. What you are talking about is a liquidated damages clause, which is only enforceable if its "reasonable" - which means for the surro to recover the example of $10,000, a judge would have to find that the surro did in fact suffer $10,000 worth of damages. Which the surro wouldn't have - at least not legally speaking - since its not her baby.

There are contracts written all the time that when it comes down to it, are not enforceable - and its not because they are illegal contracts.

[queenjane]

Originally Posted by Frank Speaks 

If the adoption agency will not allow you to put this condition in the contract, go find another agency.  I would also suggest putting a statement in your birth plan just in case the adoptive parents try to go around you.  This will leave the doctor and/or hospital liable  You could even write it in the contract that you or a doctor (your representative) be allowed to examine the baby before it leaves the hospital and be given access to it's medical records for a stated period. (6 months for example).

In reality, you are in the cat-bird seat here.  You call the shots.  The adoption agency wants to make their profit.  The adoptive parents want a child (very badly).  You are their avenue to both.  Without you, neither will happen.  Stand your ground.  You can call the shots.

Frank

Um, a gestational surrogate is not placing a baby for adoption, there is no adoption agency and the gestational surrogate (if birthing in a socalled "surrogacy friendly state") does not have legal standing. The intended parents will be put on the birth certificate. The baby is not hers. She will not get to make medical decisions. Further, its likely that if the parents are working with a surro. lawyer or agency, they may have several GS to choose from. There is nothing wrong with a potential GS from seeking out intended parents who share her values, and i bet thats quite common. But they need to go into it with the realization that ultimately...its not her baby. She might do better choosing to work with parents in an area where circ is less common.

And frankly, if it WAS an adoption situation...again, she would do well to choose parents who share her values because once that adoption is final, the legal parents can do what they want. They could promise til the cows come home but once her rights are terminated (whether that would be at 24 hours or 2 months or whatever the law is in that state) she has no say at all. (But again...a surrogacy is usually different legally than an adoption.)

[Drummer's Wife]

What about discussing it with potential parents when you interview them? Couldn't you pick a family who agreed that circumcision isn't a good thing?

But in reality, once you've signed the paperwork and given the the baby, they can do whatever they see fit.

[Treece]

Originally Posted by MCatLvrMom2A&X 

You can have it put into the contract and you would need to discuss it in depth with the parents. For me I would be worried that they could get around it by finding a Dr who recommends circ because of what ever bogus reason they can come up with and have it done later. I would have to know without a shadow of a doubt they would not circ at all for any reason down the road and leave it up to the child later on. I would also have to know that they where aware of proper care and be not only be willing to leave the child intact but to be adament about it.
Yeah good thing I could never be a surrogate because I just dont think I could risk it.

I guess I'm not going to go this route because I don't live in an intact or surro friendly area. So yeah that's what I think is best although I would LOVE to do this it's doubtful I could.

[rnra]

The person(s) that you are a surrogate for do not need to live in the same area as you.  There are plenty of resources online that help to match up surrogates with potential families.  It seems like the best thing would be as someone suggested above--ask the person(s) what their feelings are on circumcision.  If they react with anything but vehment opposition, don't be their surrogate.  I'm sure you'll be able to find a like-minded family who would love to have you carry a child for them.

[Frankly Speaking]

Originally Posted by Super~Single~Mama 

Unforunately, the bolded is not entirely true. What you are talking about is a liquidated damages clause, which is only enforceable if its "reasonable" - which means for the surro to recover the example of $10,000, a judge would have to find that the surro did in fact suffer $10,000 worth of damages. Which the surro wouldn't have - at least not legally speaking - since its not her baby.

There are contracts written all the time that when it comes down to it, are not enforceable - and its not because they are illegal contracts.

In business, I have been party to many contracts simply because what I was selling and manufacturing was "big ticket" and my experience is very different.  Over 30 years, I have made many changes to contracts and all have been either honored or enforced.  In some, there were clauses of $1,000.00 per day for non-performance/late charges and none of them would have suffered such damages.  Those clauses were simply to make sure I performed as promised and had I not performed as promised, those amounts would have been held out from the final payment.  This was all done on the advice of attorneys.

Was I going to push my luck?  No.  I performed as per the contract.

Most of the work I/we did was contract work and I have amended many contracts and they were all honored by both parties.  A contract is a meeting of the minds reduced to paper.  They are only non-enforcable if there is evidence there wasn't a meeting of the minds for the most part.

Putting a non-circumcision clause in a contract simply puts the other party on notice that they are not to do this.  Both parties would recognize that doing the prescribed thing is likely to end in legal rammifications.  If they do, they do so at their own risk and peril.

Frank

[Super~Single~Mama]

Yes Frank, I am an attorney, and a clause that stated the intended parents were not allowed to make a particular medical choice for their child would not be enforceable in a court of law. I know that circ is not medically necessary, but in the US having a foreskin is not valued, and circ is considered a medical decision - and a contract requiring specific medical choices would not be enforceable. Not if you went to court, not if you tried to get money out of it. You are right that it may intimidate intended parents so that they would not seek the circ - but that doesn't make the clause enforceable it just means that there would be a chance of litigation if the surrogate mother found out about the circ.

[lovebeingamomma]

I'm sure you could find a family that are against circ, that should not be hard since the rates are going down.  A couple who was very pro-circ, wouldn't choose you in the first place if you had that in the contract.  But just remember, the baby isn't yours!  They can do whatever they want, circing is legal.   

[Treece]

And of course the child could always end up being a girl :) or quads. lol

[brant31]

That's why, when you and the future parents interview each other, you should state that you hold strong views that boys and girls are to be treated alike -- and genital autonomy falls squarely in that equal protection equation for you. They might disagree, agree strongly, or wonder why it's an issue. If it's the latter, you may have a chance to elaborate and make the intactivist case.

It's just my belief, but I think carrying a child for 9 months while you worry about whether he will face circumcision is just bad karma for both of you. I have a friend who was unable to conceive for 7 years while she and her husband couldn't come to an agreement about newborn circumcision, which their community normally requires. And they were actively TTC. Within weeks of hubby coming around to the intactivist viewpoint, she was pregnant. I believe the brain sends the rest of the body all kinds of messages via hormones, many having to do with reproduction.

[Frankly Speaking]

Super~Single~Mama wrote:  "and circ is considered a medical decision"

No, it is a cultural/religious reason.  The AAP classify it as elective surgery.  It is not to treat any disease or correct any defect.

"a contract requiring specific medical choices would not be enforceable"

It is not a medical choice therefore it would be enforcible.  But the object is to discourage the circumcision and I think a contract would do just that.  Anyone would be a fool to sign or violate the terms of such a contract.  Lawyers are expensive and I suspect they would learn that quite quickly.