Gestational surrogacy (i.e. surrogacy that does not involve the egg of the surrogate), is an incredible option for family building which process receives the spotlight from its popularity amongst high-profile celebrities, such as Elton John, Andy Cohen, Neil Patrick Harris, and more recently, Kim and Khloe Kardashian.
People turn to surrogacy for various reasons such as reoccurring miscarriages, same-sex male couples, and as stated by Khloe Kardashian in the show KUWTK, pregnancy would be deemed high risk to the intended mother, just to name a few reasons. Each state has different laws and legal requirements regarding surrogacy where some states require a medical necessity to proceed with surrogacy, whereas some states allow it for any reason.
Whether you are a celebrity pursuing surrogacy or a person who does not have their own www.IMDB.com profile (such as myself who worked with a surrogate to build my own family), the overarching privacy and confidentiality considerations remain the same for all people involved in the surrogacy process. To share or not to share, that is the question!
A celebrity intended parent needs to consider when making a surrogacy baby announcement to what degree the intended parent wants to share their participation in a surrogacy journey with the world.
When working on the legal agreement with a high-profile intended parent, there are, generally speaking, two main paths an intended parent can take – keep the entire process private from the world and not disclose they are working with a surrogate at all, or some celebrities elect to carefully share their surrogacy journey with the world. Both paths are valid, understandable, and everyone should have the ability to make the choice that makes them feel comfortable and also makes all the parties involved feel comfortable.
Celebrity surrogacy pregnancies obviously have much greater interest than a non-celebrity pregnancy, however, celebrity or not, the concerns regarding confidentiality and privacy, especially in a world where so much is shared on social media, can have serious repercussions if privacy is breached either by the intended parent(s) or by the surrogate.
What kinds of questions should be asked when making a surrogacy announcement to the public?
A comprehensive surrogacy agreement which is entered into prior to the pregnancy between the intended parent(s) and a surrogate addresses numerous topics, including confidentiality, privacy, and future contact between the parties. The importance of understanding and complying with a surrogacy agreement is so critical that it is a best practice (and sometimes legally required), that the intended parent(s) have their own reproductive attorney draft the agreement and also pay for a separate lawyer to represent the surrogate and her spouse, if any, to review the surrogacy agreement. Having an attorney work with the surrogate for the review of the surrogacy agreement is many times a surrogate’s first experience working with an attorney, which may seem scary, however, it is critical that a surrogate fully understand the legal consequences involved in the surrogacy arrangement and to ensure her legal rights are protected.
In a high-profile surrogacy agreement, the confidentiality language may have more stringent requirements for the parties involved to maintain extreme confidentiality. Additionally, it is important for all parties to know there may be severe consequences if confidentiality is breached.
One of the first questions to be asked when making a celebrity surrogacy baby announcement is, “What does my surrogacy agreement permit regarding confidentiality to remain in compliance with my legal obligations?”
Many surrogacy agreements allow the intended parent(s) and the surrogate to share non-identifying information about their involvement in a surrogacy journey as long as information about the identity of the parties or the contemplated child(ren) are not shared with third parties. The ability to share identifying information about the parties may require additional written consent from the applicable non-sharing party. The overarching confidentiality legal obligations explains why when you see celebrity surrogacy baby announcements, you typically see the intended parent(s) share that they worked with the help of a surrogate to build their family, however, identifying information about the surrogate (i.e. her name or picture, as examples) is not disclosed.
The decision on what information can be shared with the world in each surrogacy matter is really a customized decision to be made on a case-by-case basis between the intended parent(s) and the surrogate. The topics of privacy, confidentially, and communication expectations between the intended parent(s) and surrogate are ones that should be discussed at the time an intended parent and surrogate are matched prior to even entering into a legal agreement to ensure that everyone sees eye-to-eye on expectations regarding privacy and how the surrogacy journey will be disclosed (if at all), to friends, family and the world at large.
From a legal perspective, one needs to be very careful on all surrogacy journeys, which also applies to a high-profile surrogacy match, before anything is shared with third parties to avoid any inadvertent disclosure. For example, an intended parent who is legally permitted to share non-identifying information needs to carefully post ultrasound pictures on social media as the image could contain data with identifying information about the surrogate, medical provider, and health of the pregnancy where an innocent mistake can have negative repercussions.
Whose interests should be considered and how when sharing publicly about surrogacy?
Sharing identifying information about a surrogate in a celebrity match could have far-reaching negative impacts if not planned for carefully, such as jeopardizing the safety and privacy rights of the surrogate and her family, who may not have the same infrastructure and protection as a celebrity may have from overwhelming paparazzi or celebrity fans.
When making a celebrity surrogacy baby announcement, many interests must be carefully considered when the parties decide what can be shared with the world.
An intended parent(s) may not want to share that they had the help of a surrogate at all due to privacy concerns about the nature of the pregnancy. Some intended parent(s) may use a donated egg, donated sperm, or even donated embryos which has further privacy concerns that an intended parent may not want publicly shared. Cultural, religious, or legal impacts in an intended parent(s) home country may shape whether an intended parent wants to share publicly about their surrogacy involvement. Additionally, if a celebrity intended parent carried a child previously, they may not want to share if surrogacy was needed for any additional children out of privacy concerns.
The privacy rights of the surrogate and her family are also tantamount, and a consideration as the surrogate may not feel comfortable with the world knowing her identity and that she helped a celebrity as a surrogate. Should a surrogate’s identity be shared during the pregnancy, it could complicate the journey with the media spotlight on a woman who otherwise may prefer to live a private life with her family. Based on societal, cultural, or religious opinions on surrogacy, a surrogate may not feel comfortable in her community with everyone knowing she is helping as a surrogate, which also factors into her privacy concerns.
Another interest to consider is the privacy of the child being born via surrogacy. It is a personal decision of the intended parent(s) to make whether they want to discuss the nature of the surrogacy process with their child. An intended parent(s), as the legal parent, should have the ability to share this type of information with their child if and when they feel it is appropriate. Most surrogacy agreements address this language specifically that it is the right of the intended parent(s) to share the nature of the surrogacy agreement with their child(ren).
What cultural trigger points do celebrity surrogacy announcements hit?
Celebrity surrogacy announcements can have cultural implications, both positive and negative. A positive is that a celebrity announcing a surrogacy delivery may empower other people to know they are not alone in the struggle to build a family when faced with various infertility challenges. A negative cultural reaction occurred in 2022, when Khloe Kardashian shared a photo of herself and her baby born via surrogacy at the hospital while Khole was laying down in the hospital bed holding her newborn baby. This created a media stir as some people felt this photo was insensitive in that it was Khloe taking the credit for her baby born via surrogacy and not giving credit to surrogate who delivered the baby.
An intended parent legally has the ability to share their child with the world in the fashion they desire, provided the guidelines of the surrogacy agreement are adhered to.
Upon the birth of the child, the hospital provides a recovery room for the surrogate, and typically the hospital makes best faith efforts to provide a separate hospital room for the intended parents(s) to spend time with the baby. A baby may need to remain in the hospital for days, or sometimes weeks, before medically able to be discharged.
While Khloe did not carry her baby born via surrogacy, the surrogacy process can be complicated, expensive, and emotionally charged and it’s not an easy process for an intended parent to go through. Khloe should enjoy her baby in whatever way she chooses and it’s a great joy, for both an intended parent and for a surrogate, to see an intended parent embrace their child upon birth.
It seems people were upset at Khloe’s picture as the image of Khloe laying in bed with her baby, and not her surrogate who recently laid in a similar bed, was in a way, Khloe taking credit for the surrogate’s hard work. The surrogate who helped Khloe was an incredible person to do what she did helping as a surrogate. Khloe, and any intended parent, also worked hard to have a child via surrogacy and deserves the autonomy to post a picture of a mother and baby relaxing together.
What many of the critics of this photo may not understand is that I presume Khloe was under a legal obligation not to share identifying information about her surrogate, therefore, a picture of only Khloe without the presence of her surrogate, not only protects the privacy rights of the surrogate, but may also be terms of a legal obligations Khloe was obligated to follow.
