Every so often, stories like these will pop up. A woman becomes a surrogate for a couple. They freely enter into the contract, the woman is paid a fair sum of money, and the woman gets pregnant.
During the pregnancy, it’s discovered that something is horrifically wrong with the baby and the couple demands that the surrogate abort the baby. When this makes news is when the surrogate refuses. But the contract clearly states that the couple have the right to make this demand.
So what should happen? I’m pro-choice but I do not believe that this should be a valid term of the contract. I do not believe you can mandate a surgical procedure like this. I certainly don’t believe the courts can compel this to occur. You’d basically have about a 6 week time frame from discovery get through trial/appeal/etc before the window closes. And what will the court do? Use police force to drag her to a hospital and strap her down?
I think the surrogate is being foolish beyond belief to want to carry a child to term that has almost zero chance of survival…but it’s her choice to make. Where does that leave the couple? I guess that’s the risk you run, making contracts for surrogacy.
So what do you all think?
Please note, I’m not asking for a debate on abortion, nor am I asking whether it IS legally enforceable to have this clause. I’m asking your opinion on whether it SHOULD be legal to have this clause in a surrogacy contract.
“Pro-choice”—by definition—means the woman gets a choice. That settles it, as far as I can see. So I’m pro-choice and I say it ought not to be legally enforceable.
I was reading that story and the idea of a contractually required abortion just seems so wrong. It seems equivalent to contractually requiring some other kind of non-essential surgery. I also think its excessive. Why did they need the child to actually be aborted? Why couldn’t they just suggest the child be aborted and, say, require that if she did choose to keep the child that she was assuming all parental responsibility from the biological parents? That seems to me to be the real crux of the reason why they would have had that in the contract, was that the biological parents didn’t want to be responsible for a disabled child, so if the surrogate accepts that and they have no legal responsibilities, that seems to solve everyone’s problems.
So, yeah, I voted the third option. It’s even more morally repugnant to legally require an abortion than it is to forbid it.
I can’t help but wonder how things would have turned out if the contract clause about the termination also included an agreement that ALL FUNDS would be returned to the contracting parents in the event that the surrogate failed to terminate the pregnancy on request.
I’m sorry, but I know women who are professional surrogates. They are paid very well for their services and they read the contracts that they are signing. The surrogate in the other thread spoke English as a first language and worked through an agency so had professional assistance with understanding the contract.
I’m generally against abortion, but it is a legal procedure at this point in time, the surrogate agreed in writing to under go the procedure, and the surrogate was paid for the services that she’d already rendered. The surrogate absolutely breached the contract that she voluntarily signed. I think the surrogate should be forced to refund all money’s paid to her, forced to pay for the legal expenses of the couple who contracted with her and should be forced to pay for all the medical care of the child involved.
For those who think that a contractually required abortion is wrong, I’m sure that they wouldn’t actually sign a contract that had the potential to require an abortion and they certainly wouldn’t accept funds from someone who only wanted a perfect child from their contracted services. BUT, the surrogate in the other thread DID do business with people who included an optional abortion in their contract. So, I don’t see how this surrogate is pedestal worthy in any way shape or form.
The surrogate expressed her choice when she entered a contract that included the option and accepted money for her services.
Who in their right mind would enter a contract with an abortion option if they were against abortion? That makes no sense.
What about the rights of the couple who felt it would be cruel to bring a child to term when that child will spend most of their life in a hospital? Did you see all the surgeries that kid is going to go through?
Just to play devil’s advocate here, it can be said that she made her choice when she signed the contract.
Personally, I don’t believe that an abortion should be mandated but I don’t think I have an issue with some sort of stipulated altering of the contractual conditions if the abortion does not occur.
I am not particularly squeamish about abortion. To me it’s just one more medical procedure and less invasive than some. I would not like to make abortion mandatory BUT until certain laws change in regard to surrogacy contracts and the issue of child support I feel mandatory abortions in some cases are necessary and the only fair legal option. No one should be forced into parenthood.
So would you also say that if you go into the hospital for surgery, once you sign the consent form there’s no going back? They’d be able to restrain you even if you changed your mind before the surgery started?
She shouldn’t be forced to have an abortion but she should be forced to return all the money. Yeah, it’s her body but nothing says you can’t sign a contract that gives other parties rights over it. It would be like one of those guys who got paid to get a company logo tattooed on their face just changing their mind and keeping the money.
Arguably the 13th amendment does. If you sign a contract to get a tattoo and then change your mind before the procedure, they can’t have you held down and forcibly tattooed. Have to return the money? Sure. Have to pay a penalty that was included in the penalty? Sure. But have people hold down a screaming, begging, sobbing woman and perform an abortion on her? No way in hell.
I mean, if you contract with a legal prostitute and she changes her mind after you’ve handed her the money, can you refuse to take it back and then have forcible sex with her?
ETA: I see you agree with me: I am mostly speaking to the people that seem ok with a physical forced abortion.
Any way you slice it, the contract requiring abortion ends up pitting one persons solely economic right to contract for property, with another’s fundamental right not to have medical procedures imposed on them against their will. The latter should always prevail.
Um, what about the fact that the child was 95%+ likely to require frequent surgeries and have a limited life. Don’t they have a right to say that they don’t want that sort of life for their child? And, it was their child until the surrogate ran to a different state.
Nope. The preferences and opinions of the bioparents about a hypothetical child are trifling compared to the real fact of forcing surgery on a resisting citizen. That it something that should only be done for extraordinary reasons.
I was thinking about this. Would it be possible for the surrogate to refuse both parental responsibility AND the abortion? Granted, the parents would most likely look for another surrogate in that case, but that doesn’t answer my basic question.
Yes, enforceable. If the surrogate signed the contract, she needs need to abide by it or be in breach and pay the fines or take responsibility for the unwanted child or whatever. I am not saying she should be physically forced into an abortion, but that she needs to realize there are severe consequences for being in breach of her contract.
If this is not something she is willing to do, she needs to not sign the contract. It seems that simple to me. My best friend is a surrogate and she reads her contracts very closely and doesn’t sign anything that she’s not willing to go through with.
Nope, it should not be enforceable for the reasons so ably laid out by Manda JO. If there must be stipulations regarding the health of the fetus, they should as airtight as possible and worded along the lines of “Should X defect be discovered prior to Y time of gestation, the contracting couple may terminate their parental rights (with penalties as desired). Parental rights will pass at that time to the surrogate”. The surrogate can then choose to abort, keep the child or place it for adoption. Ideal? No. There would be the chance the surogate could elect to give birth and the contracting couple could have a child somewhere that they would rather not have had. I don’t see how that is a worse consequence, however, than a forced medical procedure on an unwilling woman.
Some would say that abortion is an option in non-surrogate pregnancies and should be an option here, but that is a false dichotomy. A surrogate pregnancy is different and as such carries much different risks. Involving a third party will change the options. They can’t make medical decisions about your baby, you can’t make medical decisions about their body.
The trouble with this is that the financial consequences become borne by the child. Child support and custody is geared to ensure the health and welfare of the child. You have a couple who have set into motion the creation of a child. They cannot simply dissociate themselves from the child because the surrogate broke the contract. The surrogate can’t sign away the child’s rights to financial support.
Now, the couple might be able to get away with it if they are not the genetic parents. They could enter an agreement whereby the surrogate gets implanted with a 3rd party egg/sperm/whatever they do. The couple then can adopt the resulting child, and pay all the expenses + fees, or not adopt with a different set of fees depending on the situation. One of the situations can be a disabled child, if the surrogate aborts, the couple pays X fees, if the surrogate doesn’t, the contract is cancelled and the couple are out of the picture entirely.