To some other possible examples of surrogacy contracts breaches by their participants may be referred:
a. the voluntary termination of the pregnancy by the Surrogate Mother without any reasonable cause or without the consent of the Intended Parents;
b. the refusal of the Surrogate Mother to conduct an abortion pursuant to the attended physician’s recommendation and request of the couple of the Intended Parents in case if the child / children she is bearing is / are abnormal from the physiological point of view;
c. genetic relationship of the child / children either to the Surrogate Mother or / and to her husband / boyfriend and not to at least one of the Intended Parents;
d. the refusal of the Surrogate Mother to identify any of her sexual partners for blood and / or paternity testing;
e. failure of the Surrogate Mother to follow any behavioral restrictions during the pregnancy term, as they are set forth in the surrogacy agreement ( for example – no consumption of alcohol and / or drugs, smoking, etc.);
f. failure of the Intended Parents to pay for all fees and expenses, which have anything to do with the surrogacy, as it is listed in and required by every surrogacy agreement;
g. either participant’s of the surrogacy agreement being aware of any falsification or omission of material information as summarized in or relevant to the surrogacy agreement.
It is also extremely useful and important to provide the selecting and agreeing in advance on all the procedural dispute resolution mechanisms, which would be available to the participants of a surrogacy agreement in case of a breach. Thus, in case if either participant decides to breach the surrogacy agreement, then informal, open and cooperative discussion and mediation of any possible disputes with the help of some third party, for example a professional mediator, licensed psychological counselor, ordained minister, etc. may be in everyone’s best interests, and especially in the interests of a resulting child / children. Providing such a kind of a prerequisite before any participant of a surrogacy agreement can proceed to formal court proceeding may possibly end up in somewhat more amicable resolution of the most disputed issues and it may also reduce the likelihood that either participant will try to back out of the surrogacy agreement completely. However, in case if this informal dispute resolution would be without success, then either participant of a surrogacy agreement retains its right to proceed to formal court proceedings, if it happens to be necessary to do.
In case if the participants of a surrogacy agreement fail to reach any kind of informal agreement, they can still look for various remedies upon litigation of their dispute. Either participant can look for something, which would enforce the agreement – it means that they can ask the court to force the party, which desires to breach the agreement to follow through with the original intention of the agreement, just as it was drafted and signed. For example, the couple of the Intended Parents has the right to ask the court to force their Surrogate Mother to deliver the child / children to them, just as she had intention to do; as well as the Surrogate Mother has the right to ask the court to force the couple of the Intended Parents to receive the child / children as they had intention to do. Otherwise, either participant has the right to ask the court to terminate the surrogacy agreement and leave the child / children in the complete custody of the Surrogate Mother. If this remedy were based on the breach of the agreement by the Surrogate Mother (if the child / children is genetically related to the Surrogate Mother and her husband / boyfriend, and not to either of the Intended Parents), then the participants would state that the couple of the Intended Parents would not bear any financial and / or legal responsibility for the child / children. If this remedy were based on the breach of the agreement by the couple of the Intended Parents (if the Intended Parents fail to accept custody of a child / children, who is / are, for example, handicapped), then the participants would state that the Intended Parents would still be responsible for the child / children financially as well as legally, even if the child / children remain in the custody of the Surrogate Mother. There is also another remedy available to the participants of a surrogacy agreement – it is to ask the court to implement a shared parenting arrangement, settling such issues as parenting time and child support in accordance with the state’s / country’s applicable child custody laws. And, finally, in case if the child / children is / are not related to at least one of the Intended Parents genetically, the Intended Parents may still want to keep available to them remedy to adopt the child / children in case if they receive the Surrogate Mother’s consent to and if she agrees to cooperate in the adoption procedure.
It is important to point out, that all the contractual procedures and remedies as fore the breach of a surrogacy agreement may only be considered as being as enforceable as the surrogacy agreement itself. Even in case if the participants include specific language as to what can constitute a breach of their agreement, and are the procedures and remedies, which can be available to the participants of a surrogacy agreement upon a breach of it, if only a court makes the decision that the agreement is unenforceable, none of these provisions will have any effect. There are states and countries, in which this issue has been decided positively or negatively, however, there are states and countries, in which there has been neither litigation completed nor law passed to with the aim to predict whether such surrogacy agreements would be enforceable. This is why it is extremely necessary to discuss all the factors that govern surrogacy agreement with a well – experienced attorney in the state or the country, where the Surrogate Mother resides.
Notwithstanding the facts that the dispute ration in surrogacy agreements is extremely low and that thousands of surrogacy contracts signed, end up successfully each year in many different states and countries, still there are cases, which do result in disputes.
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