SUMMER REPLAY: Let's stop gagging surrogates

If surrogates can't speak freely about their experiences, how will we know how things are going? Short answer: we won't.

One of the things that has exasperated me during my years of covering assisted human reproduction is the many attempts to muzzle people with important information to share. Nowhere has this been more troubling than when trying to write about Canadian surrogates.

I am not the first to note this. In her ethnographic study from over a decade ago, Shireen Kashmeri speculates that part of her difficulty in finding surrogates willing to talk may have been due to confidentiality clauses. Kashmeri quotes one surrogate, 'Fern', saying: "Canadian surrogates don't want to talk because they're being paid. If they talk, there'll be a record of them somewhere and they're afraid it'll get back to the couple that's paying them. Because the couple could end up in prison. Most of them have signed a contract saying they won't talk to anybody." To her credit, Fern refused to sign such a clause. "I remember when a couple tried to throw that into my contract and I was pretty quick with that — you ain't going to gag me!"

Below, I share a selection of lines taken from confidentiality clauses found in Canadian and US surrogacy contracts, followed by an essay on why I think these are not only not in the surrogate's interest, but not in the public interest either.

8 minute read

The gestational carrier shall keep strictly confidential:

"the terms of this agreement"

"this agreement"

"the specific terms contained in this agreement"

"details of the surrogacy arrangement contemplated by this agreement"

"activities contemplated or carried out"

"anything related to the surrogacy"

The gestational carrier shall not share any information about the arrangement in/on/to:

"any public forum"

"any public forum whatsoever"

"Internet"

"blogs"

"Facebook, or any other social networking site"

"on-line chats"

"the public"

"any other individual"

"any person"

"even to immediate family or to closest friends" [if that risked disclosure]

[Only once, in a US contract, did I see a clause making clear that confidentiality did not bar communicating with: friends, medical doctors, psychologists, relatives, or other surrogates. "Such conversations are permitted and do not constitute a breach of confidentiality" so long as the identity of the other party is not revealed. ]

The gestational carrier agrees to waive the:

"protected right of free speech"

"right of free speech whether protected under the United States Constitution, Federal legislation, or State law."

Let's stop gagging surrogates

In 2017, I published a story about a surrogate who carried a baby for a Canadian couple. The two parties met online and within 24 hours had agreed in principle to go ahead. Weeks later, they had both signed a contract. That contract, and the details surrounding it, became an obsession for me.

It wasn't just that the surrogate had signed on without any legal advice (in Canada, unlike in some jurisdictions, it's not required) or that the couple offered the surrogate $500 to forego that advice, in order to speed things up. It wasn't just that the contract made it sound like transferring four embryos was a done deal, and she'd have no further say in what was done to her body. It wasn't even that she was signing a contract that she knew to be false, which said the surrogacy was altruistic, when she knew full well she was going to be paid the contract's faux expenses on top of the real expenses. No, the part that riled me the most was that she was strictly forbidden to ever tell you or me any of this.

Cards on the table: I believe confidentiality clauses like these are a danger. They are a danger not only to the surrogate but also, and maybe more importantly, to public policy as well. They should not be permitted. Canada does a good song and dance about "protecting" women — it's one of the chief purported goals of the Assisted Human Reproduction Act (AHRA) — but it seems to me that if you want to protect someone you have to know what you are protecting them from. Confidentiality clauses all but guarantee that we will never really know.

To be clear, we're not talking about splashing names and addresses and birth dates in the press. Families deserve that sort of basic privacy. Rather, we're talking about the systematic muzzling of a surrogate. The woman I wrote about was instructed to tell no one but her immediate family and closest friends what she was up to and even then to be careful not to disclose details "of any nature" about "activities contemplated or carried out." Imagine if a husband silenced his pregnant wife this way, or a doctor a patient.

In the particular case I wrote about, this could have cost the surrogate her life. Luckily for her, she did communicate with fellow surrogates, and it was these fellow surrogates who told her, when she complained of extremely high blood pressure and swelling all over her body, to ignore what she was being told by her intended mother and head straight to hospital. Requiring a pregnant woman to not talk about her pregnancy — her symptoms, her emotional concerns, her feelings about how she's being treated during the process — is dangerous to her health. (The babies were delivered the next day, at 28 weeks 5 days, and the surrogate spent three days in the ICU.)

But gagging a surrogate is also dangerous for the rest of us. You might be considering asking a surrogate to carry your child. You might be considering acting as a surrogate yourself. You might be a lawmaker — or a judge signing off on these agreements. Or you might be just a citizen interested in your world. Regardless, you should know how these arrangements shake down. This is especially true considering that when the AHRA came into force in 2004, after years of consultation and health committee wrangling, it was putting law in place for a largely untested sphere of activity. It's our duty as a society to keep tabs on how things are working out.

Back then, many people — including many of the parliamentarians who crafted the law — had a poor grasp of what surrogacy was and how it might evolve. They thought it was mostly about women using their own eggs. (A large number now use genetically-unrelated eggs.) They thought that if it wasn't a sister or a cousin acting as a surrogate, it would be mostly the very poor, being coerced by the very rich. (Though there is an income disparity, surrogates do not tend to be the very poor.) One of the lawmakers' biggest fears was that surrogates would not be able to part with the children they'd carried. (Many surrogates report not having great difficulty parting with the babies.)

What we do know is that many surrogacies appear to unfold joyfully and without incident. Many of these have involved gay men who couldn't otherwise have had children or women who simply cannot carry babies or who don't have uteruses at all. I and others have written about such cases. To be honest, stories like these are pretty easy to write about, because, as you might imagine, despite strict confidentiality clauses forbidding either party to speak, when things go well, people toss confidentiality to the wind.

But there are dark stories too. Confidentiality clauses make those stories especially tricky to tell. So you seldom hear them in any detail.

My 2017 story about surrogacy, for instance, was written in 2015; it took two years to publish. There were multiple legal concerns — above all, what breaking confidentiality could mean for the surrogate. The contract warned that "a claim for damages... may be sought" if there was a breach. No one I asked could give a clear answer about the risk.

All this despite the fact that surrogacy contracts might not even be binding. For a contract to be binding, "consideration" (usually money) must exchange hands. But according to the AHRA, paying a surrogate "consideration" is strictly prohibited. So either the contract was valid but the intended parents had broken the law or the contract was not valid because they had not. No matter: I was advised the confidentiality clause might still hold, the surrogate might still be sued and even if she had a good defence, the whole matter might be kept under wraps if the court ordered the details sealed. (Sealing orders: don't get me started.)

In the end, this surrogate decided to tell her story. (The publication was advised by lawyers to remove her name and all identifying details, which she reluctantly agreed to.) It chronicled the precise way in which some "altruistic" surrogacy arrangements manage to circumvent the law. It shed light on the subtle but life-threatening ways the doctor-patient-patient triad is failing surrogates. It helped illuminate the tensions and misunderstandings that can arise when well-meaning people get entangled in a high-stakes project like creating a baby. There are indeed dangers in surrogacy, but by and large, they aren't the ones we suspected when we wrote our law.

Sound public policy is based on accurate information. Gagging surrogates hinders the coming to light of such information, so it is, in my view, against public policy. A test case to resolve the issue might be a long time coming. So how can we stop these overbearing confidentiality clauses? I can think of two ways.

One would be to remind surrogates — through their lawyers, foremost, but also through public campaigns, the media, and online chat groups — that they have the right to refuse confidentiality clauses. They can scratch them out of their contracts. Contracts can be negotiated; they are not edicts. Surrogates (unlike, for instance, freelance journalists, who also find egregious clauses in their contracts) are in the enviable position that they are in short supply and in high demand: they have real bargaining power. They need to know that and to use it.

But a more straightforward route would be to just write it straight into the Act: that a surrogate cannot be compelled to conceal the details of the surrogacy. The understanding would be that anyone interested in third party reproduction had to accept that the third party is a separate autonomous person with a right to tell her own story.

Coming forward in the face of a threatening confidentiality clause is not for the faint of heart. The surrogate I wrote about decided to do it, but many others have chosen not to. And, sadly, you won't know their stories when it comes time to evaluate how things are going.

This item was originally published in HeyReprotech on May 7, 2019.

Alison Motluk. "Gag orders pose a danger to surrogates and to public policy." Policy Options. May 2019.