I believe that the contract should be enforceable but only in law. Her actions in refusing the abortion clearly breach the contract. Any remedy in law (aka, dolla dolla bills y’all) for said breach is appropriate.
The contract should not be enforcable in equity. Specific performance (execution of the contract clause, ie, the abortion) is unconscionable in this instance and the court’s order otherwise would likely violate the pregnant woman’s right to substantive due process under the U.S. Constitution.
Pretty much this. There could be ways for a legal obligation to have an abortion to go awry (some uncommon medical condition that would make it dangerous for the woman, for example). But a better contract would have stated more clearly that the couple has the right to request an abortion, and if it’s refused, the surrogate is legally obligated to pay back all the money she’d been given, including the value of her pre-natal medical care, and the surrogate assumes parental rights/obligations from that point forward.
The surrogate freely entered into the contract, so after-the-fact “but I’m against abortion!” is weaseling in the worst way. Especially since she demanded more money after breaching her contract. She saw a golden goose and was surprised that she couldn’t just dictate the size of the egg.
What should happen in the OP’s theoretical case is what should have happened in this case; the surrogate was in breach of contract for refusing the abortion so that should have severed the contract. Surrogacy contracts that are drawn up by professionals include language to address this material breach; if they don’t, the law of the surrogate’s delivering state comes into play. In the case the OP links to, the surrogate deliberately went to Michigan which has made it illegal to compensate a surrogate beyond expenses. Along w/ refusing the abortion b/c the intended parents wouldn’t pay her 15K, she breached the contract by moving to a state where the contract itself was unenforceable.
The contractual language usually reads that a breaching surrogate will not only have to pay back all monies spent toward achieving that specific pregnancy but will also assume sole custody and sole responsibility for the child. In all the years I’ve been following the surrogacy world here and outside the States I’ve never heard of another case like this one. There have been similar rare cases where custody was disputed and the like, but those almost always came from not having any kind of written contract in place, which is pure idiocy.
100% agreed that you should not legally be able to force an abortion. I couldn’t even imagine a doctor being able to do such a thing against the mother’s own will! Could you imagine being the doctor being forced to give an abortion to a woman who doesn’t want it, contract or not?
HOWEVER, there should be contractual ramifications for not terminating a pregnancy that you have agreed to terminate under certain stipulations. Perhaps the woman could be successfully civilly sued for breach of contract, etc.
There is no difference. What is being discussed is Specific Performance which seems to be generally limited to the transfer of unique possessable items like land or art, where a simple financial impact is not going to fulfill the terms of the contract.
Which means the contract cannot say that the surrogate “will” have an abortion at the couple’s direction, and be enforceable. It can only say, if the surrogate fails to have an abortion at the couple’s direction, this is the consequence. I don’t think anyone actually thinks the second contract would be a problem at all.
(*) it = belief that surrogate should be forced into abortion.
You are correct that I have never said the woman should be forced into any medical procedure. And I do not believe that she should have. But I am fine with her being permanently impoverished through any legal form possible for her actions.
I fully believe that had the woman faced the return of all funds to date, she would have had the abortion without even a whimper. I believe that she tried to force the continued pregnancy for the sake of continuing her income.
There is NO WAY that I would ever sign a contract with an abortion option, there is no amount of money worth that risk.
This woman was a paid surrogate that didn’t want the gravy train to end because her next pregnancy would be at the 30+ range and typically, if you can get a consignment at all, they pay less money because you are viewed as less healthy and there are younger women willing to do the same job.
The surrogacy aspect seems to disguise the general issue.
Ie if this is allowed, it would legitimise someone setting up a contract with their partner, ie if it has X defect or I just change my mind even, you have to have an abortion, or parenthood is entirely on you.
It sucks that there is no backsies when you do surrogacy, but it is not so important to make surrogacy less risky or more controllable that this kind of contract can be allowed in regards to birth.
If someone actually, willingly, without duress signs such a contract, I don’t see what the problem is with making them fulfill it. (ETA clarification: I mean that they accept the contractual consequences of not having the abortion, not that they are tied down and forced to have one… cuz I know someone somewhere is going to misunderstand this…)
No one has to sign such a contract if they don’t want to. If they don’t want to be legally bound by such terms, they can refuse to sign; they have that choice. I imagine a lot of women would refuse, if presented with such a contract. (It would probably not speak well of the health of the relationship, either.)
Well I guess if that kind of contract can occur, then the surrogacy issue would disappear.
But I would be very surprised if it did. Usually these kinds of things get struck down as not being in the interests of the child for a parent to try and leave the mother holding the baby with no further responsibility on their part.
As a kinda libertarian leaning guy it sorta pains me to say this but…
I would hope that any woman who is asked by a male romantic partner to sign an abortion contract will promptly dump him, with some choice insults.
I’ve decided that no not all contracts should be enforceable, you can’t sell yourself into slavery or be forced at gunpoint to have surgical tools inserted into your body. Because thats not my kind of world.
It seems to me not unlike a case where grandpa leaves you his estate, on the condition that you divorce your lazy husband. I believe you get the money and the ‘if’ clause is entirely ignored as it is not legal to force someone to divorce, even though it was in the will. (At least I think that’s the case for where I live, anyway.)
You can put anything in a contract, doesn’t mean the courts have to uphold it. As I think this couple are about to learn.
As for returning the money, what if she had spontaneously aborted in her seventh month? Would she be forced to repay the money? I think not. Even if it was in the contract.
This is not my understanding at all. The age of the egg is a medical issue. Age of the surrogate is not so much of a factor if using a donor egg. I am sure there is some upper limit of age where the medical procedures involved with surrogacy might pose additional risks to an older person, but I don’t know what that is. Not the 30s, though.
I haven’t voted - IIRC this specific case - based on the laws in play for the surrogacy - the unborn infant was actually the ‘property’ of the biological parents - not the surrogate.
Does that change anyone’s opinions on the contract itself?
IOW - does this change it from “paint my damn house” to “return my stolen property” ?
(I am not suggesting that ‘FORCING’ the abortion itself would ever be acceptable - just the way the contract and stuff is done)
Why? Many people don’t want children ever and the sign of a mature relationship is being upfront in the matter. In my culture marriage vows often include making promises or accepting conditions tailored to the individual relationship. My husband acknowledged and accepted in front of about 500 people that I had no intention of ever having a baby and would have an abortion if I became accidentally pregnant. Culturally which for me is more powerful than United States’s law that is a contract.
If she spontaneously aborted in her seventh month? That would be an event beyond her control. Not following through with the abortion was a deliberate decision to break the contract. She should be penalized as harshly as possible. Hopefully she’ll never get another surrogacy contract.