Confidentiality clauses written into contracts with surrogates should not be allowed in Canada. They can harm women, and the policy process.
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 they had agreed in principle to go ahead with the arrangement. Weeks later, they had signed a contract. That contract, and the details surrounding it, became an obsession for me.
The contract raised multiple ethical issues. The surrogate did not receive any independent legal advice before signing it; in fact, the couple offered her $500 to forego legal advice in order to speed things up. The contract made it sound as if the surrogate had no say about how many embryos would be transferred into her body, and that if the couple wanted four (they did), she had to agree to four. The document was also written to make the arrangement appear completely altruistic on the part of the surrogate, even though she would be paid a set amount of money whether or not she actually incurred expenses.
All of these things were objectionable enough. But what bothered me most was that she was strictly forbidden from revealing any of it. The contract contained a gag order.
Confidentiality clauses like these are a danger to the surrogate but, perhaps more importantly, they are a threat to public policy. 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 around in the press: Families deserve some 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, she was instructed to be careful not to disclose details “of any nature” about “activities contemplated or carried out.” Imagine if a husband silenced his pregnant wife, or a doctor silenced a patient in this way.
In the case I wrote about, the imposed silence could have cost the surrogate her life. Luckily for her, she did communicate with fellow surrogates about the high blood pressure and swelling she was experiencing. They told her to ignore what she was being told by the intended mother of the babies and to 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 and 5 days, and the surrogate spent 3 days in the ICU.)
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 just be an interested citizen. The public should know how these arrangements unfold. This is especially true considering that when the AHRA came into force in 2004, after years of consultation and parliamentary wrangling, the legislation was dealing with a sphere of activity that was largely untested. 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 would mostly involve women using their own eggs. (A large number of surrogacies now use genetically unrelated eggs.) They thought that, if it wasn’t someone’s sister or cousin acting as surrogates, it would be very poor women being coerced into surrogacy by the very rich. (While there is often an income disparity between surrogates and prospective parents, surrogates do not tend to be very poor). One of the lawmakers’ biggest fears was that surrogates would not be able to part with the children they’d carried. In my experience working in this issue, many surrogates report they do not have great difficulty parting with the babies.
What I have found through my work and research is that surrogacies generally appear to unfold joyfully and without incident. To be honest, stories like these are pretty easy to write about, because when things go well, people toss confidentiality to the wind and go full-on public.
But there are dark stories too. Confidentiality clauses make those stories especially tricky to tell, so you seldom hear them told in any detail.
For instance, I wrote my 2017 story about surrogacy in 2015, so it was two years before it was published. There were multiple legal concerns, mostly about what breaking confidentiality could mean for the surrogate. The contract warned that if there was a breach “a claim for damages…may be sought.” When I asked about the risk, no one could give a clear answer.
All this is despite the fact that some surrogacy contracts might not even be binding. According to contract law in Canada, 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 abided by the law. No matter: I was advised the confidentiality clause might still hold, the surrogate might still be sued, and even if she had a good defense, the whole matter might be kept under wraps if the court ordered that the details be sealed.
In the end, this surrogate decided to tell her story. (On the advice of lawyers the publication withheld her name and any identifying details, much to her dismay.) My article chronicled precisely how 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 for both parties, but by and large they aren’t the ones parliamentarians expected when they wrote our law.
Sound public policy is based on accurate information. Gagging surrogates hinders the exposing of the facts and evidence. So how can we stop these overbearing confidentiality clauses? I can think of two ways.
One way would be to remind surrogates – through their lawyers primarily, 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. (At least one surrogate, « Fern, » reported doing just that.) Contracts can be negotiated; they are not edicts. Surrogates (unlike, for example, 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 that power.
A more straightforward route would be to just write directly into the AHRA that a surrogate cannot be compelled to conceal the details of her surrogacy. California law requires that gestational surrogates have dated contracts and that they receive independent legal advice. If we chose to, we could require those things, as well as an end to blanket confidentiality. Anyone interested in third-party reproduction would have to accept that the third party is a separate, autonomous person who has a right to tell her 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 have chosen not to. And sadly, policy-makers won’t know these surrogates’ stories when it comes time to evaluate how things are going.
This article is part of the Addressing the Gaps in Canada’s Assisted Reproduction Policy special feature.
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