In the case described in the OP, the surrogate should be in breach of contract and liable for damages. However, she can not be forced to undergo an abortion against her will (that is unenforceable and always should be). It is my understanding that surrogate contracts generally include a boiler plate clause that says the surrogate will terminate the pregnancy in the case of ‘severe fetal abnormalities’ - which is quite vague. I think the contract should be rewritten to be more specific in regards to to the severity of fetal abnormalities requiring abortion and include that refusing to terminate in such a case will result in breach of contract and will require the surrogate to pay back all the money received, pay back all medical expenses incurred plus damages.
I also think the surrogate can not be forced to carry the pregnancy against her will if she changes her mind for any reason. If she chooses to terminate against the wishes of the intended parents (outside of life threatening health reason that should be specifically outlined in the contract) then the surrogate is in breach of contract and liable to return all moneys received, payback all medical expenses incurred in addition to damages.
That is what makes this story so tricky, the legal parents in surrogacy vary by state. In Connecticut the intended/genetic parents have parental rights. In Michigan the surrogate mother has parental rights. It is my understanding that in the UK the surrogate has parental rights regardless of the genetic makeup of the embryo/baby - there is no binding legal contract prior to brith. The surrogate has to sign over rights at birth to the intended parents (or put the genetic father’s name on the birth certificate for equal rights). So, essentially whoever physically births the kid has property/parental rights of the kid until signing them over. I tend to agree with this.
In the case of the OP the genetic father was left off the birth certificate by the surrogate so he essentially has no rights.
Personally, I think it is inhumane to bring a child into the world with such catastrophic fetal abnormalities described in the OP. However, regardless of my personal feelings on the matter pregnancy termination should be decided by the woman and her physician.
I am trying to think about this in a less charged, more common situation. What if a man before having sex had a woman sign a contract which stated if a pregnancy resulted, she was agreeing to abort. It wouldn’t be enforceable. Nor would he be able to specify that he would not be financially liable if she didn’t have the abortion.
A pregnant woman has a right to those choices regarding her body, even if it is not her egg.
20 years ago when I was in need of the morning after pill, I had to sign an agreement that I would terminate should the pill fail to work, and I become pregnant. Now, I doubt that was about manually forcing me to, and all about me not being able to sue them if I continued with the pregnancy and there were defects.
I don’t think this is similar because (a) no one paid you to take the morning after pill and (b) you were under a time constraint and an adverse situation. The surrogate in question solicited a contract for surrogacy through an agency, was allowed to pick the couple that she’d work with, had ample time to read and consider the contract that she was signing, and was paid for her services.
Illegal acts cannot be contracted for and cannot be legally enforced. The law is that only the pregnant woman can decide if she wants an abortion or not. Even the lower NJ judge in the Baby M trial, who ruled against surrogate mother Mary Beth Whitehead in every other instance, stated that the abortion clause was unenforceable.
If the genetic father wants the woman to abort and she doesn’t, should he be held responsible. You betcha, sweetie.
Suppose you hire me to paint your garage and you pay me up front. I refuse to paint your garage. Are you suggesting that since slavery is illegal I cannot be compelled to paint your garage and therefore the whole contract is unenforceable?
First of all, painting my garage is hardly an illegal act. If I pay you, it’s not even slavedom.
Second of all, nobody can make you perform any service, even with a contract. Yes, they can sue for damages and lost money, but nobody can make you do anything.
There was a case in Germany a couple of years ago where a guy agreed to let another guy kill and eat him. Should the cannibal killer have gotten away with it because the victim agreed to do it?
Really? You think that if you paid me to paint your garage and I decide not to complete the contract, you can have the sheriff come out and make me do it?
Even if she signed the contract, she could refuse the abortion and, if the father took it to court to get the abortion clause enforced, the judge would say “Tough luck.” He might be able to get financial consideration, but even that’s a stretch.
I think what Annie is getting at is that it’s not legal for someone other than the pregnant woman to decide whether or not an abortion happens. In this case, she agreed to let the couple decide whether or not she would have an abortion. It’s unenforceable because no authority is going to make her have an abortion on the couple’s say so.
Edited to add, Annie already said this, but I’ll leave my version here anyway.
I don’t think the poll is worded quite right- I think it should be ‘legally enforceable’ in the way that not doing so should engender legal consequences, but I certainly don’t think anyone should be literally forced into an abortion, under any circumstances.
I think its kind of a strange thing to debate to begin with…kind of like asking if people think slavery should be legal so my first thought was shock it even requires debating
I too am interested that this is even an issue folks wish to discuss. I won’t debate the point, but the idea of a judge entering an order for the sheriff to pick the woman up and take her to a medical facility, where she will be forced to undergo an abortion (how exactly? put in physical and/or chemical restraints? what doctor would perform such a procedure without the consent of the patient?) is surreal.
But I’m curious, for those who believe that the woman should be forced to have an abortion, what would yoru feeling be if a woman had contracted to be a surrogate and 21 weeks into the pregnancy wished to have an abortion? Do you believe that contract provisions requiring her to have the baby should be enforced against her will, i.e. she should be forced to carry to term and give birth? And if so, how exactly would you enforce it?
I interpret ZPGZealot’s statement to mean exactly that. Enkel seems to imply it, with the argument that the parents paying the surrogate have a right not to have their child live a life frought with medical problems.
And on the other thread asking for opinions about the story, at least one poster argued explicitly that the woman should be forced to undergo the abortion.