I heard about this story a few weeks ago and wanted to share it here. Didn’t see a current thread about it.
Here’s the basic gist of the situation. A Canadian couple decides to have a baby through a surrogate mother. It states clearly in the contract that the baby will have genetic testing and if it’s determined that there’s a problem with it, the surrogate mother will have two choices
Abort the fetus
Bring the baby to term, however the biological parents will not be held responsible for the financial or emotional wellbeing of the child.
Testing is done and it’s determined that the fetus has Down Syndrome. Surrogate mother refuses to abort AND refuses to take responsibility for the child. Court case ensues, but before a decision, the surrogate relents and gets the abortion.
So my wife and I are fierce supporters of a woman’s right to choose and we have radically different opinions on this scenario.
My initial belief is that this clause in the contract would not be legally enforceable. I don’t know Canadian law, but I can’t imagine it to be too dissimilar to US law and there’s no way you should be able to contractually compel someone to get an abortion.
As for the second choice whereby the parents relinquish all rights to the baby, I don’t see that as enforceable either. Liken it to an accidental regular pregnancy. Sorry dad, you’re stuck with child support payments for 18 years. You don’t get to sign away your rights to child support pre-sex. It’s just that in this case, there’s two people instead of one that gets stuck.
Now we’ll never know how the law comes down on this because the abortion eventually happened. But I’d like to believe that a woman’s right to choose supercedes any contractual obligation to the contrary.
My wife, on the other hand, sees this as a basic business transaction. She signed a contract. She was of sound mind when she did so. She willingly rented out a portion of her body on behalf of this couple and by doing so she’s given up her right to make decisions regarding that body part. Surrogate contracts will usually say what doctors she must see, what foods she can eat, what excercises she must do and no one bats an eye. She’s rented out her body for a substantial sum of money and part of that agreement is that she’s given up control over decisions made about her body.
I agree, but draw the line at abortion.
We’re both in agreement that what the surrogate initially chose to do was really really crappy. Either you agree to the terms of the contract or you don’t sign. But it’s shitty to say you’re not going to abort but hell no you don’t want the kid. The child is your problem, not mine.
She signed a contract. If she didn’t like the terms, she shouldn’t have signed it. I don’t know enough about Canadian law (or even US law) to know how enforceable the contract is, but I’m assuming that lawyers were involved in drafting it, so it must have been legally valid.
I don’t see the abortion as being mandated, but as basically a part of returning the choice of what to do back to the surrogate. I can say that the terms might seem a little callous (to the surrogate), but she didn’t have to agree to them.
Here is a rundown of US state surrogacy laws. A few states expressly prohibit the intended parents from opting out of the contract based on a congenital defect. They have to take the same chance as any prospective parents.
I don’t know. Maybe, at least to the extent that failure to comply could be a breech of contract. Obviously, an abortion could not actually be forced, but I’m guessing an agreement could conceivably be made that failing to get an abortion under stipulated circumstances could result in a monetary penalty or dissolution of the contract.
Why not? If a woman knowingly signs such a contract, she knows what kind of person she’s marrying. She needs to be ready to part ways and collect nothing upon giving birth.
I’m generally pro-life, but I realize abortion is legal. If you signed a contract that you can’t live up to, you better be prepared to deal with the consequences of breaching it.
1 - I believe she has the legal right to abort at will and this contract does not effect it
2 - I believe paternal obligations can not be legally abandoned. But this contract would seem to allow the surrogate mother to legally set a new father on her own, which would end the couple’s responsibility as their child would have been adopted to the surrogate’s family.
Even if the contract is legal, I can’t see that a court would to enforce the contract in the sense of compelling her to have an abortion, for the same reason that you can’t enforce an employment contract by compellling someone to work.
Nor can they contract out of their child support obligations for any child that is born. (Whether they have any child support obligations may of course depend on what genetic relationship they have to the child, and what local law provides. But, assuming that they do, they can’t escape them through a contract for an abortion, any more than your ordinary careless bloke can get out of child support obligations by saying that his partner always said she would have an abortion if she got pregnant.)
They might be able to recover damages for breach of contract. This again depends on the local law. In some places the court would regard the contract as illegal, so no damages. In others, the courts may already have precedents against granting damages for “wrongful birth”. If they did recover damages from the birth mother, they would of course seek to offset them against their liablity to pay child support to her. They couldn’t do this, though, if the child ended up being cared for by someone else.
I’ve got no case law for it, nor can I really face looking for it, but a clause requiring a woman to get an abortion strikes me as completely unconscionable, and would not be enforced in any jurisdiction I can think of.
And the “opt out” part, allowing the parents to avoid financial responsibility if the surrogate doesn’t abort - irrelevant. The surrogate cannot sign away the child’s right to financial support (assuming Canadian law is the same as US law on this).
The only way I can possibly see this type of clause working (and I don’t think it would work even then) is a clause saying that the surrogate mother will reimburse the parents for any child support they pay.
I agree with your wife, no one superceded her right to choose. She chose to enter a contract that made her responsible if she chose to have the baby. The abortion might not be compelable, but the latter part should be.
Czarcasm, a prenup that stated any unplanned pregnancies carried to term will result in x$ being reduced from your inheritance or divorce settlement seems plausable. It’s my understanding that ‘fines’ for cheating or not maintaining your body wt show up in prenups.
Seems to me, if the surrogate wants to keep the baby, in conflict with the basic terms of the surrogacy contract, then the contractual relationship can be altered. Instead of a Parent/Surrogate relationship it would change to Donor/Parent. The couple has agreed to donate sperm and an egg to the surrogate, at which point their obligations are ended.
I got obsessed with the Baby M surrogacy case, as it happened in my own next of the woods. The courts agreed that only the surrogate mother had the right to decide whether to abort or not.
The contract started that if the biological father asked the surrogate mother to abort and she did not, he could walk away with no legal obligations. I don’t think there’s a court in the land that would agree to that idea. (Of course, when surrogate mother Mary Beth Whitehead decided to fight for custody of the child, she had to put the worse possible spin on the idea. “The contract stated that I had to under amniocentesis and if even a figure was missing, I had tro abort or the couple would walk away.”)
Most states that permit surrogacy require that at least one of the intended parents must supply gametes. If both sperm and eggs were donated and the pregnancy is carried by a woman other than the intended mother, that’s not surrogacy; that’s adoption. A different set of laws would probably apply.
She signed it, she needs to deal with her decision. The agreement never *required *an abortion, it gave her a limited ranges of choices. It is designed to reflect the wishes of the parents. Thus, it states that if they were able to carry on their own, they would without reservation terminate a fetus with congenital problems and try again. The surrogate is given a further choice of being spared having to go through with the termination and my carry the child, but she then must take all responsibility for it. I see no ethical issue with this at all.
I’m assuming here that both parents supplied gametes.
Conceptually, it is possible and reasonable that two individuals could donate gametes to a third person, with the understanding that the donors will have no legal obligation to the care and support of the child.
There’s no ethical reason that a surrogacy contract cannot be altered to become a donation contract under a designated set of conditions.