# Surrogate mother with Down Syndrome fetus: abortion contractually mandatory? **URL:** \ **Category:** Great Debates\ **Created:** [October 27, 2010, 3:09pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527 "2010-10-27T15:09:27Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Acid\_Lamp](https://avatars.discourse-cdn.com/v4/letter/a/d6d6ee/32.png) [@Acid\_Lamp](https://boards.straightdope.com/u/Acid_Lamp)\ **Post date:** [October 27, 2010, 5:58pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/21 "2010-10-27T17:58:10Z")
> [@villa](#): > > Because the right to support is the right of the child, not the right of the custodial parent. > > The surrogate mother is here signing away a right that doesn’t yet exist, for a person who doesn’t yet exist. And you just cannot legally do that. The situation is different. We aren’t talking about a pre-nup, an accident, or some other random permutation of circumstances that results in a pregnancy that is the total purvey of the mother. In this case, she has _ **rented** _ out her body to the parents in exchange for money. They have laid out a set of ground rules guiding that use and have given her the additional option of carrying an imperfect pregnancy to term. They have given her that option at the trade off of having to acknowledge or care for what is to then would never have existed if they did not need the services of the surrogate. It sounds to me like the surrogate would like to continue her meal ticket for another 18 years. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [October 27, 2010, 6:03pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/22 "2010-10-27T18:03:59Z")
> [@Acid\_Lamp](#): > > The situation is different. We aren’t talking about a pre-nup, an accident, or some other random permutation of circumstances that results in a pregnancy that is the total purvey of the mother. In this case, she has _ **rented** _ out her body to the parents in exchange for money. They have laid out a set of ground rules guiding that use and have given her the additional option of carrying an imperfect pregnancy to term. They have given her that option at the trade off of having to acknowledge or care for what is to then would never have existed if they did not need the services of the surrogate. It sounds to me like the surrogate would like to continue her meal ticket for another 18 years. Yes, the situation is different. But legally (and ethically, and morally) the child (once born) has a right to support. It is neither ethical, legal or moral for that right to be traded away before the child is even in existence! As I mentioned earlier, there is a possible way around the legal aspect of this - it would be for the contract to be written such that the woman who bore the child contracted to be personally liable to the parents of the child for any support payments that the parent might have to make. However, that would in no way deny the child the right to the support money. Any legal action to recover would be against the surrogate mother - if she was unable to pay, that would not excuse the parents the responsibility of paying child support. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [October 27, 2010, 6:11pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/23 "2010-10-27T18:11:24Z")
> [@villa](#): > > 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. Another argument against the contract is that the abortion clause is void as being against public policy. In my state, a suit attempting to compel an abortion is a non-starter. No court is going to order a woman to have an abortion. I agree with your analysis of the “opt out” part. ---
**Author:** ![Acid\_Lamp](https://avatars.discourse-cdn.com/v4/letter/a/d6d6ee/32.png) [@Acid\_Lamp](https://boards.straightdope.com/u/Acid_Lamp)\ **Post date:** [October 27, 2010, 6:12pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/24 "2010-10-27T18:12:51Z")
> [@villa](#): > > Yes, the situation is different. But legally (and ethically, and morally) the child (once born) has a right to support. It is neither ethical, legal or moral for that right to be traded away before the child is even in existence! As I mentioned earlier, there is a possible way around the legal aspect of this - it would be for the contract to be written such that the woman who bore the child contracted to be personally liable to the parents of the child for any support payments that the parent might have to make. However, that would in no way deny the child the right to the support money. Any legal action to recover would be against the surrogate mother - if she was unable to pay, that would not excuse the parents the responsibility of paying child support. Your just splitting hairs. The law wasn’t written to cover a situation like this. That is the problem with rapidly evolving technology/ private business and the law. Case law and standing rulings are really irrelevant here. You can probably squirm around it using existing law, but who really gives a crap? It seemed to me that OP was addressing the ethical ramifications more than the thorny legal implications. We can change a law with a vote if we need to. The unwanted child should have the right to the support of the surrogate mother and nothing more, just as if she’d gotten knocked up by a long gone one night stand. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [October 27, 2010, 6:17pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/25 "2010-10-27T18:17:57Z")
> [@Acid\_Lamp](#): > > The unwanted child should have the right to the support of the surrogate mother and nothing more, just as if she’d gotten knocked up by a long gone one night stand. Wrong. The product of a one night stand has a right to support from both parents. The child (by and through its Next Friend and/or the State) may not be able to identify/locate the father to enforce that right, but it still exists. ---
**Author:** ![Acid\_Lamp](https://avatars.discourse-cdn.com/v4/letter/a/d6d6ee/32.png) [@Acid\_Lamp](https://boards.straightdope.com/u/Acid_Lamp)\ **Post date:** [October 27, 2010, 6:25pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/26 "2010-10-27T18:25:06Z")
> [@Oakminster](#): > > Wrong. The product of a one night stand has a right to support from both parents. The child (by and through its Next Friend and/or the State) may not be able to identify/locate the father to enforce that right, but it still exists. I’m aware of that. The end result is the same. What is legal is NOT the same thing as what is ethical. ---
**Author:** ![Acid\_Lamp](https://avatars.discourse-cdn.com/v4/letter/a/d6d6ee/32.png) [@Acid\_Lamp](https://boards.straightdope.com/u/Acid_Lamp)\ **Post date:** [October 27, 2010, 6:32pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/27 "2010-10-27T18:32:55Z")
I want to expand on my last post a bit. The point is that the law is written to protect children from the whims of less than stellar parents. In this case, the surrogate is NOT a parent, she is a rented womb. The child is not the result of accident, relationship, chance, or fate. It is the result of a legal contract and a medical procedure. The Surrogate is NOT a parent. Further, it is given that it would be terminated due to it’s condition if the biological PARENTS would have been able to due without the rented meat. The law in this case is inadequate, inapplicable, and arguable unethical in it’s required ruling; in regards to the surrogate’s rights over her rented body, the actual parent’s rights to terminate, and the resultant unwanted/ excess spawn’s financial needs. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [October 27, 2010, 6:58pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/28 "2010-10-27T18:58:34Z")
> [@Acid\_Lamp](#): > > I’m aware of that. The end result is the same. What is legal is NOT the same thing as what is ethical. So you are now saying it is ethical that the product of a long gone, one night stand does not receive support from the party who has disappeared? This isn’t a situation where the person doesn’t know the child exists. Once the child exists - ethical responsibility to provide support. What isn’t ethical, on the other hand, is a determination that if the child isn’t “perfect”, you don’t want anything to do with it. ---
**Author:** ![Odesio](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/odesio/32/20003_2.png) [@Odesio](https://boards.straightdope.com/u/Odesio)\ **Post date:** [October 27, 2010, 7:29pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/29 "2010-10-27T19:29:17Z")
> [@Diogenes\_the\_Cynic](#): > > 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. Just because lawyers are involved doesn’t mean the contract will stand up to scrutiny in a court of law. I don’t think either the mother or the father has the authority to sign away the rights of the baby (theoretical baby since it didn’t come to term). Generally speaking we don’t allow parents to just walk away from their responsibilities here in the United States and I doubt Canada is all that different. So far as the father goes; you pays your money and you takes your chances. ---
**Author:** ![Acid\_Lamp](https://avatars.discourse-cdn.com/v4/letter/a/d6d6ee/32.png) [@Acid\_Lamp](https://boards.straightdope.com/u/Acid_Lamp)\ **Post date:** [October 27, 2010, 7:31pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/30 "2010-10-27T19:31:35Z")
> [@villa](#): > > So you are now saying it is ethical that the product of a long gone, one night stand does not receive support from the party who has disappeared? > > This isn’t a situation where the person doesn’t know the child exists. Once the child exists - ethical responsibility to provide support. What isn’t ethical, on the other hand, is a determination that if the child isn’t “perfect”, you don’t want anything to do with it. No, I’m saying that awarding a “right” that will never surface is lip service at best, and It’s nothing more than a gamble that the other parent will be found in time to be held liable. Either way, the money never comes around. As to your second point, that is currently the right of every woman to determine on her own, something that is also inadequately addressed by our legal system. These parents were confident enough of their decision to not carry through with a special needs to kid to _put it in writing_. If that doesn’t state that the mother would terminate then I don’t know what does. Care to address the actual point? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [October 27, 2010, 7:39pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/31 "2010-10-27T19:39:21Z")
> [@Acid\_Lamp](#): > > As to your second point, that is currently the right of every woman to determine on her own, something that is also inadequately addressed by our legal system. These parents were confident enough of their decision to not carry through with a special needs to kid to _put it in writing_. If that doesn’t state that the mother would terminate then I don’t know what does. Care to address the actual point? I would if I realized what your actual point is that you are trying to make… I’ve already said that I am pretty certain this contract would be unenforceable in a US court. ---
**Author:** ![Acid\_Lamp](https://avatars.discourse-cdn.com/v4/letter/a/d6d6ee/32.png) [@Acid\_Lamp](https://boards.straightdope.com/u/Acid_Lamp)\ **Post date:** [October 27, 2010, 7:44pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/32 "2010-10-27T19:44:45Z")
**Villa** , I am asking you what you think OUGHT to happen in this situation, since we both seem to agree that this situation is unique. The law is really irrelevant, since its application here would be shoehorning and torturous. is it enforceable as written? Maybe, who knows? It isn’t even in the US so our laws really don’t matter anyway. The question as I read it from the Op was: Should contract law be able to supercede an individual’s rights to their body, and a child’s right to support? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [October 27, 2010, 8:03pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/33 "2010-10-27T20:03:01Z")
What should happen? The contract should be held to be void, and the parents should provide support to the child. It’s one of the risks one takes with surrogacy, I am afraid. There are two interests here that trump as far as I can see. First, during the pregnancy I do not feel that a couple should be permitted to compel a woman to have an abortion. Second, after the pregnancy, there exists a child with a right to support from its parents. If you do not want to risk having a child with a disability, adopt. This situation is no different from that in which a man says “I don’t want a child who is disabled,” and his wife agrees. They get pregnant, and an amniocentesis suggests the child will be disabled. At this point, I 100% defend the right of the mother to abort. But if she chooses not to, even if the couple divorce as a result, the child still has the right to support from the father. What you are suggesting here is just another way of saying fathers should be able to opt out of supporting their children if the woman told them before hand she was on birth control, or would have an abortion. That’s not the law, and it should not be the law, for both practical and ethical reasons. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [October 27, 2010, 8:51pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/34 "2010-10-27T20:51:01Z")
> [@Enderw24](#): > > [http://www.vancouversun.com/technology/couple+urged+surrogate+abort+fetus+defect/3637422/story.html](http://www.vancouversun.com/technology/couple+urged+surrogate+abort+fetus+defect/3637422/story.html) > > 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 > > 1. Abort the fetus > 2. 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. > > What do you all think? Did the contract pay her the same amount regardless of whether there was a live birth? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [October 27, 2010, 8:54pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/35 "2010-10-27T20:54:19Z")
> [@Barkis\_is\_Willin](#): > > IANAL, but legally, you can not include personal matters not related to finance in a prenup, so I doubt an abortion clause woud fly. If you attach a penalty such as “if you don’t get the abortion, the guy can divorce you and you get nothing but child support” ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [October 27, 2010, 8:55pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/36 "2010-10-27T20:55:30Z")
> [@villa](#): > > 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. This sounds pretty close to what I would guess. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [October 27, 2010, 9:07pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/37 "2010-10-27T21:07:59Z")
> [@Acid\_Lamp](#): > > No, I’m saying that awarding a “right” that will never surface is lip service at best, and It’s nothing more than a gamble that the other parent will be found in time to be held liable. Either way, the money never comes around. > > As to your second point, that is currently the right of every woman to determine on her own, something that is also inadequately addressed by our legal system. These parents were confident enough of their decision to not carry through with a special needs to kid to _put it in writing_. If that doesn’t state that the mother would terminate then I don’t know what does. Care to address the actual point? We can argue whether it is fair to hold fathers “strictly” liable to support all their progeny but the law developed that way based on public policy grounds. The notion was that the welfare of the child (once born) outweighed any equitable concerns of forcing a father to pay to raise a child that he would rather have aborted. This led to some abuses (mistresses getting pregnant to maintain an income after the guy moved on to his next mistress; guys getting cornered into marrying girls because they couldn’t afford to maintain two households, etc.), but in the end, the law cares about the welfare of the child. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [October 27, 2010, 9:25pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/38 "2010-10-27T21:25:34Z")
> [@Tom\_Tildrum](#): > > Most states that permit surrogacy require that at least one of the intended parents must supply gametes… Everyone keeps talking about _fathers_ having to pay child support; wouldn’t both members of the commissioning couple be equally liable for child support if both their gametes were used? 😕 What if the wife’s egg was used with donor sperm? ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [October 27, 2010, 10:31pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/39 "2010-10-27T22:31:12Z")
If the contract compelled abortion in the event of congenital defect, I would have all kinds of problems with that, on multiple levels. But from what I can tell, that’s not what the contract says: Rather, it says that in the event of congenital defect, full responsibility (including the responsibility to decide whether to have an abortion) falls onto the host mother. And so long as the host mother agreed to that, I can’t really see a problem. Quoth **villa** : > [@](#): > > Yes, the situation is different. But legally (and ethically, and morally) the child (once born) has a right to support. Sure, but under the terms of this contract, the child (once born) would receive support. All that changes is who the support would be received from. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [October 28, 2010, 1:51am UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/40 "2010-10-28T01:51:26Z")
But the child’s right to support from its parents doesn’t arise out of contract, and can’t be contracted out of - especially not by a contract to which the child is not a party. The surrogate has no power to absolve the parents of their obligation towards the child; at most, she can agree to reimburse them for the child support obligations that they have, as **villa** suggests. This could make a big difference, if child support is means-related. The child support payments will be calculated on the basis of the parents’ means, not those of the surrogate. Stereotypical assumptions would suggest that parents in this situation generally have greater means that surrogates. Furthermore, if the surrogate defaulted on her obligation to reimburse the parents - if, for example, she simply couldn’t afford to pay the amount of child support calculated by reference to the parents’ means - this wouldn’t affect the parents’ obligation to the child to pay child support. In short, this contract is not necessarily effective to insulate the parents from the financial consequences of begetting a child with Down’s syndrome. At best it can provide a mechanism whereby the cost may be shared with the surrogate. [Previous page](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527.md?page=1) [Next page](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527.md?page=3)