What defines a high-risk pregnancy in surrogacy, and who determines that status?
According to surrogacy attorney James Mahan, the classification of a pregnancy as “high-risk” is typically determined by the surrogate’s OB or midwife—not the intended parents. Around 13–14 weeks into the pregnancy, certain tests may signal developmental or health concerns. If issues like gestational diabetes, hemorrhaging, or abnormal bloodwork/ultrasounds appear, a medical provider may elevate the pregnancy status and refer the surrogate to specialists like MFMs (maternal-fetal medicine).
What if intended parents disagree with the surrogate’s care plan or classification?
Disagreements can arise if intended parents believe a pregnancy is high-risk while the surrogate’s doctor does not—or vice versa. Mahan explains that contracts typically give the surrogate authority to follow her medical provider’s advice. Intended parents may request additional testing, but surrogates aren’t required to comply unless:
- It is medically indicated, and
- Her own doctor does not object to it.
The surrogate’s autonomy is central, though contractual clauses aim to find balance through second opinions when needed.
How do surrogacy contracts address medical decision-making during complications?
Most surrogacy contracts include provisions stating the surrogate agrees to follow the recommendations of her medical team—such as testing, specialist referrals, or procedures. However, the surrogate always retains the right to consent to medical interventions. The contract encourages cooperation with doctors, but ultimately, it’s her body, and she must agree to any course of action.
What happens in a medical emergency if the intended parents cannot be reached?
In emergency situations—especially when time-sensitive care is needed and intended parents are unavailable—the surrogate has full authority to act in accordance with her medical provider’s advice. James Mahan emphasizes the principle of “carrier first, baby second.” While both lives are important, the surrogate cannot be sacrificed for the baby’s survival. This prioritization is clear in nearly every legal contract and supported by ethical and legal standards.
Can intended parents override the surrogate’s choices in emergencies?
No. In life-threatening cases or when time does not permit further discussion, the surrogate makes the final decision—not the intended parents. If she is acting on medical advice, contracts shield her from liability. Surrogacy law, particularly in progressive states, protects the bodily autonomy of the gestational carrier in emergencies.
What is a “second opinion clause” and how does it work?
The second opinion clause allows either the surrogate or intended parents to request a second medical opinion when there’s disagreement over a recommended treatment or test. If invoked, the party requesting the second opinion typically pays for:
- The appointment
- Any travel required
- Related costs not covered by insurance
This clause is designed to ensure fairness and safety, giving both parties a process to resolve disagreements medically, not emotionally.
Who selects the third-party physician when doctors disagree?
In the event that a second opinion still leads to a conflict, the contract may include a “referee clause”. This provides for the appointment of a neutral third-party physician, mutually agreed upon by both the surrogate’s doctor and the intended parents’ preferred provider. This third physician will evaluate the situation and make the final recommendation, which both parties agree to honor in advance.
What happens if the contract favors the intended parents’ doctor’s opinion?
In some contracts, the final decision may default to the second opinion physician, even if selected by the intended parents. While this may streamline decision-making, Mahan cautions that it could weaken protections for the surrogate. That’s why he prefers contracts with neutral, jointly selected referees when possible.
How does James Mahan support surrogates during medical complications?
Mahan explains that complications—such as unexpected twins or elevated testing—can happen at any point, and they’re often emotionally and physically stressful. Many surrogates, especially in independent matches or with less involved agencies, reach out to him for help navigating:
- Their contract rights
- Medical decisions
- Communication breakdowns with intended parents
He guides them through the process, step by step, ensuring they feel heard, protected, and informed.
Can a surrogate refuse a medical test or procedure?
Yes, but with caveats. If a surrogate refuses a test recommended by her physician or required under the contract, she may risk:
- Loss of compensation
- Liability if the refusal results in harm
To prevent this, Mahan builds clear “hard no” clauses into contracts when surrogates have non-negotiables. In states with surrogacy laws, legal statutes often reinforce the surrogate’s decision-making authority, limiting the enforceability of penalties for exercising bodily autonomy.
How do repeat surrogates adjust contracts based on past experiences?
Repeat surrogates often bring specific contract changes based on prior journeys. For example:
- Setting limits on testing unless medically necessary
- Clarifying that weekly appointments or MFMs aren’t covered under general expense allowances
- Requiring that all tests be doctor-recommended before being allowed
Mahan encourages repeat GCs to advocate for themselves during the legal review phase to prevent repeat stressors.
What is James Mahan’s message to surrogates concerned about medical complications?
Mahan’s core message is clear: You are not alone. Contracts are structured to protect the surrogate’s health and safety first. When medical issues arise, surrogates are encouraged to:
- Speak to their agency
- Consult their provider
- Reach out to their attorney
There is no need to rush difficult decisions. Legal frameworks and support teams exist to guide and protect surrogates, especially in the face of stress and uncertainty. Knowing that someone is in your corner can make all the difference.
