A Recent Article Discusses New Rules that Now Require Physicians to Take More Aggressive Actions to Ensure That Surrogates are Proper Candidates to Carry an Embryo to Term

In 2016 a family represented by Berman | Sobin | Gross LLP successfully presented their case to a Montgomery County jury. Their claim was somewhat novel. The plaintiffs, a married couple, could not conceive and decided to utilize the services of a surrogate to carry their own embryo. They counted on their fertility doctor to screen the surrogate’s medical history to make sure she was an appropriate candidate to carry their baby to term. The surrogate (who was paid a substantial fee to carry the embryo) lied about her medical history, hiding facts that would have excluded her as a surrogate.

The couple’s fertility doctor never reviewed the surrogate’s medical record which would have revealed her history of having preeclampsia and excluded her as a surrogate. Instead the doctor accepted the surrogate’s word regarding her medical history, despite the fact that the surrogate had a financial incentive to lie. Thus the doctor told the couple that the surrogate was cleared. Based on this assurance, the couple implanted their embryo into the surrogate who then developed preeclampsia resulting in the baby being born at 25 weeks.

The baby died 3 weeks later. The jury awarded a record $44.1 million verdict (later reduced to a significantly lower amount due to Maryland’s tort reform limits on recoveries). This case, as the attached article demonstrates, helped set new rules that now require physicians to take more aggressive actions to ensure that surrogates are proper candidates to carry an embryo to term.

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Michael Feldman
mfeldman@bsgfdlaw.com