Zika Panic—Ethical and Legal Considerations for Clients Considering Gestational Carrier Agreements

Mary Vidas and Michelle Piscopo

One of the hottest topics in the Assisted Reproductive Technology (“ART”) community today is the Zika virus and its impact on gestational carrier agreements from both the standpoint of Intended Parents and Gestational Carriers. As has been widely publicized, the Zika virus has been directly linked to severe birth defects. While most gestational carrier agreements contain a provision regarding the right to terminate a pregnancy under certain circumstances, there is a debate on whether the agreements should contain more specific agreements to address the Zika virus.

Even if you determine that your agreement does not need to have a specific provision to terminate a pregnancy if the Gestational Carrier tests positive for Zika (because it is covered in a more general provision), there are other issues to consider. For example:

  • Travel Restrictions: The Intended Parents may want a provision that restricts the Gestational Carrier from traveling to areas where Zika cases have been confirmed. If you are going to include a travel restriction, the agreement should perhaps specify not only known areas but also a specific radius from known areas. Parties should look to the Centers for Disease Control and Prevention (“CDC”) and treating physicians for advice.
  • Removal from Zika Area: If the Gestational Carrier resides in a place where Zika cases have been confirmed or become confirmed during the pregnancy, the Intended Parents may want to require the Gestational Carrier to relocate. The agreement would then require additional provisions regarding the costs and additional payments to cover the relocation.
  • Testing Frequency: Given the potentially devastating effects on pregnancy, the parties may want to include a provision requiring the Gestational Carrier to be tested periodically after the Gestational Carrier may have been exposed to the Zika virus. The agreement could also potentially include specific provisions regarding the Gestational Carrier’s responsibility to report potential exposure. The parties may also want to include a provision requiring consultation with an infectious disease specialist.

Clearly, all of the foregoing examples carry with them the problem of not only the enforceability and damages related to Zika provisions in agreements, but ethical and moral issues.

Information regarding the Zika virus and its effects continues to develop. Parties should pay close attention to information and recommendations from the CDC and their treating physicians. Most importantly, Intended Parents and Gestational Carriers should share information, communicate, and agree on all relevant terms regarding this serious issue when negotiating an agreement.

Please contact a member of Blank Rome’s full service Matrimonial and Family Law practice group for further information regarding this topic and other family law issues.