Ethical surrogacy requires that the surrogate’s life situation be stable. Such stability contributes to a healthier environment for both the surrogate and the fetus in utero. Intimate partner violence is anathema to such stability because it can cause upheaval in a victim’s life, leading to employment, food, and housing insecurity along with an inability to comply with the terms of a surrogacy contract. Furthermore, the medical care of a surrogate can become disrupted when abuse causes her to miss medical appointments. Additionally, victims of such violence are sometimes misidentified as perpetrators by the police and thus arrested and held on bail, even while pregnant. When the violence consists of physical abuse, the safety of the fetus is directly placed at risk. Also, homicide by an intimate partner is the leading cause of death for pregnant women in the United States. Surrogacy and intimate partner violence are simply not compatible.
This requirement of stability is captured in the guidelines of the American Society for Reproductive Medicine (ASRM), which are the primary resource that surrogacy professionals turn to when screening surrogate candidates. “Recommendations for Practices Using Gestational Carriers: A Committee Opinion” in ASRM, Recommendations for Practices Using Gestational Carriers: A Committee Opinion, 118 Fertility & Sterility 65 (July 2022). ASRM guidelines specify that surrogates “must have a stable family environment with adequate support to help her cope with the added stress of pregnancy” and that a psychological evaluation of prospective surrogates is required. Evidence of “current marital or relationship instability” is identified in the guidelines as a criterion for rejection.
State surrogacy statutes may also require similar screening. For example, in New Hampshire, a mental health professional must evaluate the surrogate’s “mental health, external and environmental factors, ability to manage relationships, potential attachment issues, and ability to carry out their obligations, rights, and duties under a gestational carrier arrangement.”
One of the many tasks of the mental health professional conducting an evaluation of a prospective surrogate is to ferret out the existence of ongoing intimate partner violence. The challenge is that the existing tools available are inadequate to identify the nonexistence of intimate partner abuse. The primary tools used by the mental health professional are psychological testing, such as the Minnesota Multiphasic Personality Inventory (MMPI) or Personality Assessment Inventory (PAI), and the screening interview, for assessing not only the surrogate’s and her partner’s responses but also body language, facial expressions, and interactions with each other.
The MMPI and PAI consist of multiple choice questions designed to help make a diagnosis and develop a treatment plan. While the MMPI and PAI can help identify if an abuse survivor suffers from post-traumatic stress disorder as a result of the abuse, neither test is designed to detect the existence of such abuse directly.
A limitation of screening interviews is that the nature of intimate partner violence makes it difficult to identify in such a self-reported environment. Intimate partner violence takes place in private and both the perpetrator and the victim can become quite skilled in hiding the behaviors, particularly during the “honeymoon” phase of the cycle of abuse. Also, surrogates can be motivated to conceal the abuse due to their personal or financial reasons for pursuing surrogacy, or if the inquiries take place in the perpetrator’s presence.
ASRM guidelines generally do not require the mental health professional to turn to outside resources. However, surrogacy matching programs often do some additional due diligence.
There is minimal regulation of surrogacy matching programs, so each program develops their own protocol for background checks. Surrogacy matching programs typically will conduct a criminal record check of the prospective surrogate and her partner through a commercial provider of background checks. However, commercial background check providers have limitations on their ability to access information, with the specifics varying by jurisdiction.
For example, reporting of criminal history may be restricted to a certain timeframe. Also, the databases used typically can only provide information about criminal convictions, with access to arrest data being spotty. Furthermore, intimate partner violence is underreported to the police; without a report of a crime, there can be no criminal conviction. Reported cases may not result in a conviction when the victim recants or refuses to cooperate—common in domestic abuse cases—and there is insufficient independent evidence to prove the case beyond a reasonable doubt. Non-conviction dispositions, such as a not guilty verdict or deferred adjudication, often do not appear on these background checks. For example, a continuance without a finding disposition in Massachusetts allows first time domestic violence offenders an opportunity to rehabilitate while avoiding a criminal conviction. Likewise, criminal convictions that have been expunged, annulled, sealed, or pardoned may not appear in commercially accessible databases. Additionally, these criminal record checks are typically not fingerprint based, which would allow for a more thorough search.
And lastly, but most importantly, criminal record checks only provide information about criminal cases, not civil cases. While intimate partner violence may evade reporting to the police, a victim of such violence may still seek out a civil protective order against the perpetrator. The challenge for surrogate screening is the lack of any efficient global method for non-law enforcement officials to uncover such orders. When these orders exist, the affidavits filed in support—typically publicly accessible—can provide valuable information.
Given these many loopholes, attorneys representing intended parents should advise their clients that background checks are not infallible and cannot be used to eliminate the concern of ongoing intimate partner violence.
Furthermore, attorneys can make clients aware that a more thorough search can be performed by a private investigator searching courthouse records and also by requesting criminal record histories directly from the Federal Bureau of Investigation (FBI) and the state criminal records repository. Clients may be hesitant to use such additional tools because of the added costs and time involved in an already expensive and lengthy process.
All known arrests and convictions should be carefully scrutinized to ensure they are not domestic violence related. Police reports—which are generally public records—should be obtained because intimate partner violence may result in a plea agreement for a less invidious crime.
Furthermore, attorneys should write protective language into surrogacy agreements with representations and warranties given by the surrogate and her partner to cover the nonexistence of ongoing intimate partner violence. Hopefully this language will give pause to a surrogate who makes it to the contract phase without disclosure. It is not expected that the surrogate will consequently disclose intimate partner violence, but rather that the surrogate may advise that she is withdrawing from the process for a vague or undisclosed reason.
For intended parents not working with a surrogacy matching program, attorneys can advise them about conducting a background check or hiring a third party vendor who offers this service for independent surrogacy arrangements.
Furthermore, attorneys can educate their clients about additional due diligence. For example, arrest reports may show up in a Google search even in the absence of a criminal conviction. Likewise, a surrogate may have posted on social media about incidents that were never reported to the police.
In addition, the surrogate’s gynecological and obstetric records should contain information about intimate partner violence screening done in accordance with the recommendations of The American College of Obstetricians and Gynecologists (ACOG). ACOG, Intimate Partner Violence Committee Opinion, No. 518 (February 2012). A victim may be more inclined to report intimate partner violence to her doctor during a routine visit than to disclose it during a surrogacy screening. Furthermore, the medical records may contain red flags for intimate partner abuse such as frequently missed appointments, safety planning notes, domestic violence referrals, observations of visible injuries, or indications that the patient’s partner was answering questions on her behalf or refusing to leave the room during her medical appointments.
Lastly, client engagement letters should clearly spell out that the attorney’s role does not include conducting any type of background check on the prospective surrogate or her partner. However, attorneys should be cautious of asking clients to prospectively release liability against the lawyer given that the ABA’s Model Rules of Professional Conduct require the client to have independent legal representation for such releases. Model R. of Prof’l Conduct R. 1.8(h)(1) (2024). Attorneys should also consider drafting and lobbying for legislation in their home states to expand the scope of release permitted for criminal and protective order records, so that vetted surrogacy agencies can receive more comprehensive information to evaluate their surrogate candidates.
