Social Media Clauses a Growing Trend for Couples, Surrogates, and Adopting Parents


Facebook, Twitter, Instagram, Snapchat, blogs, and video sites. We’re increasingly inter-connected through numerous social media platforms and are more instantly accessible than ever before. Of course, with the benefits of this comes misuse and even abuse, and I find myself implementing social media clauses in more and more of the agreements that I prepare.

In the confidentiality portions of our surrogacy agreements, you’ll find a section prohibiting the gestational carrier from posting pictures of the fetus or the child on social media or other public forums. The gestational carrier is similarly prohibited from sharing information about the genetic parents.

In our separation agreements, cohabitation agreements, and marriage contracts, I similarly include a social media and publication clause prohibiting either individual from posting or sharing pictures, videos, or even written descriptions about his or her partner which may lessen that partner’s esteem in society. This is mainly for those less prudent couples who exchange intimate pictures or videos with each other, and contemplates a less-than-amicable separation. The prohibition on “written descriptions” looks to prevent partners from disparaging or “bad-mouthing” one another on social media.

Lastly, as part of our adoption practice, we strongly recommend that any adoptive applicant refrain from posting any pictures or information about their adopted child until the statutory twenty-one-day “cooling off” period has passed; it is during this period that a birth parent may withdraw his or her consent to the adoption, and the last thing we want is for our clients to go through the emotional difficulty of retracting such posts if their adoption falls through. In addition, the posting of certain types of information is prohibited in our openness agreements.

Of course, not all prohibited posting and sharing would be malicious if permitted. Often, individuals just get excited and want to share their joy with their friends, family, and online network. A gestational carrier sharing a new ultrasound picture, adoptive parents sharing a photo of their long-awaited adopted child. These are momentous moments in the human experience, but they raise issues of privacy and confidentiality and can often have unforeseen emotional and legal consequences, hence the need to address the modern reality of online inter-connectivity in a well-crafted agreement.

Joshua Vickery