# 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:** 13\ **Page:** 4
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [October 29, 2010, 2:34pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/61 "2010-10-29T14:34:21Z")
The contract shouldn’t be enforced. The surrogate is despicable for signing a contract to do X when she wasn’t going to do X. She should not have the ability to exempt the genetic parents from support. So, the clause shouldn’t have been in there. It shouldn’t be enforceable. Neither party should be able to exempt the genetic parents from child support. Both parties should get a good smack. ---
**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 29, 2010, 9:22pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/62 "2010-10-29T21:22:42Z")
> [@](#): > > I’m not sure what you mean here - you say mother twice. Yes, exactly. The mother and the mother are two different people. On the one hand, we have the woman whose fertilized egg grew into the fetus. What do we call such a woman? The standard English term is “mother”. On the other hand, we also have the woman who is pregnant with the fetus. What do we call her? The English word for her is “mother”, too. It’s a very recent development that it’s possible for those to be two different people, a development that law has not yet really caught up to yet. ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [October 30, 2010, 1:21pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/63 "2010-10-30T13:21:21Z")
> [@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. Are you using another source for this information other than the linked article? This article does not talk about the specifics and the contract ant: > [@](#): > > But the physician with Pacific Centre for Reproductive Medicine said it appeared to him the three had never seriously considered such a scenario before the pregnancy. > > “They were certainly quite shocked,” he said. “Obviously, (the parents) had come on a long journey before commissioning the surrogacy, (but) all they were thinking about was success.” ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [November 1, 2010, 2:09am UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/64 "2010-11-01T02:09:39Z")
> [@villa](#): > > You include a cite to me. I answered. Yes parental obligations can be voluntary given up in certain limited situations. But they cannot be contracted away in this fashion. It’s just a legal truth. Then I’ll have to just disagree with you. I think the precedent has been set (and I don’t mean that in an ominous way) so that this type of thing can, and should be legal, in the future. I’m not worried about it running rampant. After all, we have the safe drop laws already and there aren’t millions of teen mothers abandoning their kids by the dozens. Make it legal, and only the most desperate, worst parents would drop off their kids, and that’s probably better for kids in the long run anyway > [@UDS](#): > > The question is whether they can give up the child they chose to have. The answer is yes, there are procedures for that. But signing a contract with a surrogate which says that they’ll have no responsibility for the child if they don’t like this or that characteristic is not one of those procedures. And I think it should be. Hopefully such a thing would be legal in the future without any vagueness ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [November 1, 2010, 3:31am UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/65 "2010-11-01T03:31:14Z")
> [@YogSosoth](#): > > > [@UDS](#): > > > > The question is whether they can give up the child they chose to have. The answer is yes, there are procedures for that. But signing a contract with a surrogate which says that they’ll have no responsibility for the child if they don’t like this or that characteristic is not one of those procedures. > > And I think it should be. Hopefully such a thing would be legal in the future without any vagueness There’s an important difference, though, between deciding not to have a child and deciding to abandon the child that you have (or decidign that you will abandon the child that you are going to have). There are strong arguments, obviously, for not compelling someone to care for their child when that person doesn’t want to, and so allowing the person to give up their child to the care of the state. It’s going further, though, to say that by giving up your child in this way you can absolve yourself of all responsibilty of every kind to the child, even financial. And, remember, we are talking here of a disabled child whose financial needs are likely to be high. It’s not a no-brainer to me that we should allow this, and if we do allow it it’s not a no-brainer that we should extend it to new situations. Do the social needs and policy considerations which give rise to “safe haven laws” apply here? It seems to me that the rights and interests of the child are being compromised in a very sigfnificant way, and I don’t see any compelling need for this being spelled out. What you’re doing is insuring, at public expense, those who enter into surrogacy arrangements against the financial downside of the risk, which they knowingly create, of congenital defects. Is this a good policy? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 1, 2010, 2:20pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/66 "2010-11-01T14:20:17Z")
> [@YogSosoth](#): > > Then I’ll have to just disagree with you. I think the precedent has been set (and I don’t mean that in an ominous way) so that this type of thing can, and should be legal, in the future. I’m not worried about it running rampant. After all, we have the safe drop laws already and there aren’t millions of teen mothers abandoning their kids by the dozens. Make it legal, and only the most desperate, worst parents would drop off their kids, and that’s probably better for kids in the long run anyway How are you ‘just disagreeing’ with me? You are talking about what should be - you say it “can, and should be legal, in the future.” My comment was that such a contract will be held to be unconscionable in the current legal environment. It won’t be enforced. Whether it should or not is a different question. Drop-off laws allow surrender of parental rights/responsibilites in some situations. I honestly don’t know the laws well enough to know if they fully terminate responsibilities - I would imagine in the overwhelming majority of cases they are used there is no father listed on a birth certificate, and the income of the mother is such that persuing the mother for support is not cost effective. But simply because one situation of surrender of parental rights/responsibilities is approved by the law doesn’t mean all are. And this one simply is not at the moment. Should it be? Probably not IMHO. The child’s right to support trumps other rights here I think. I’d support some kind of exclusion for sperm and egg donors. ---
**Author:** ![Annie-Xmas](https://avatars.discourse-cdn.com/v4/letter/a/ecc23a/32.png) [@Annie-Xmas](https://boards.straightdope.com/u/Annie-Xmas)\ **Post date:** [November 1, 2010, 2:44pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/67 "2010-11-01T14:44:39Z")
The [Patty Nowakowski](http://articles.latimes.com/1988-05-27/news/mn-4392_1_surrogate-mother) case, where the father kept the girl twin and rejected the boy, putting him in foster care, is a surrogate nightmare. I appalud the “surrogate” mother who retrieved the boy from the foster home and then got custody of his sister from the contracting couple. What did they think it was, like getting a puppy from a litter? ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [November 1, 2010, 8:33pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/68 "2010-11-01T20:33:39Z")
> [@UDS](#): > > There’s an important difference, though, between deciding not to have a child and deciding to abandon the child that you have (or decidign that you will abandon the child that you are going to have). > > There are strong arguments, obviously, for not compelling someone to care for their child when that person doesn’t want to, and so allowing the person to give up their child to the care of the state. It’s going further, though, to say that by giving up your child in this way you can absolve yourself of all responsibilty of every kind to the child, even financial. And, remember, we are talking here of a disabled child whose financial needs are likely to be high. > > It’s not a no-brainer to me that we should allow this, and if we do allow it it’s not a no-brainer that we should extend it to new situations. Do the social needs and policy considerations which give rise to “safe haven laws” apply here? It seems to me that the rights and interests of the child are being compromised in a very sigfnificant way, and I don’t see any compelling need for this being spelled out. > > What you’re doing is insuring, at public expense, those who enter into surrogacy arrangements against the financial downside of the risk, which they knowingly create, of congenital defects. Is this a good policy? It may work as insurance, but insurance companies get in the business to make money, not hand out a bunch of cash to people who get hurt. Just like we have safe haven laws, I don’t believe that a significant portion of the population will take advantage of this, should it become legal. How many people do surrogacy? Of those, how many would get this in their contract? And after that, how many are actually willing to abandon their kid just because there’s something wrong with it? Last, how many surrogate mothers would refuse the abortion? You’re talking about a tiny amount of people, so insurance or not, I believe public policy is better with this in place than not. And that is all based on the fact that we already have set the precedent that safe haven laws are a public good and is legal, and open to anyone > [@villa](#): > > How are you ‘just disagreeing’ with me? You are talking about what should be - you say it “can, and should be legal, in the future.” My comment was that such a contract will be held to be unconscionable in the current legal environment. It won’t be enforced. Whether it should or not is a different question. > > Drop-off laws allow surrender of parental rights/responsibilites in some situations. I honestly don’t know the laws well enough to know if they fully terminate responsibilities - I would imagine in the overwhelming majority of cases they are used there is no father listed on a birth certificate, and the income of the mother is such that persuing the mother for support is not cost effective. But simply because one situation of surrender of parental rights/responsibilities is approved by the law doesn’t mean all are. And this one simply is not at the moment. > > Should it be? Probably not IMHO. The child’s right to support trumps other rights here I think. I’d support some kind of exclusion for sperm and egg donors. I said I’m just disagreeing because I think they should be enforced. How’s that not just a disagreement. Sure we disagree on the severity of the issue but that’s all it is And your objection has been noted. According to Wiki, the law has been challenged in some states due to the fact that fathers can essentially be frozen out of the whole deal, especially in areas where mothers are allowed to drop off babies anonymously. But that is a problem with the safe haven law, not a valid objection to simply renouncing parental responsibility in a contract, which is based on the safe haven law but not quite the same thing. Here, we know who the parents are, so there is presumably no chance of the mom surrogating a child out and then contracting her rights away behind the back of the father ---
**Author:** ![alice\_in\_wonderland](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alice_in_wonderland/32/176_2.png) [@alice\_in\_wonderland](https://boards.straightdope.com/u/alice_in_wonderland)\ **Post date:** [November 1, 2010, 9:12pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/69 "2010-11-01T21:12:07Z")
Well, no one can be compelled to have an abortion; however, it also doesn’t seem right to force another couple to raise a severely disabled child because you changed your mind on a contract you signed. (and yes, I know that Downs Syndrome comes in degrees; however, ‘severely disabled’ is one of those degrees). Ethically the clause should have never been written into the contract and if the parents want a guarantee of a perfect healthy baby they should probably get a puppy instead lest they be disappointed. I would be very interested for someone well versed in Canadian law to comment - I know that abortion is not the issue here that it is in the US, but I still wonder what lawyer would have put that in the contract. It’s just begging for this type of crap situation to occur. I am interested to know if the surrogate still got paid, or if the couple is going to try again. Frankly, it sounds like they’re not really ready to be parents. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [November 2, 2010, 1:45am UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/70 "2010-11-02T01:45:00Z")
> [@YogSosoth](#): > > It may work as insurance, but insurance companies get in the business to make money, not hand out a bunch of cash to people who get hurt. Just like we have safe haven laws, I don’t believe that a significant portion of the population will take advantage of this, should it become legal. How many people do surrogacy? Of those, how many would get this in their contract? And after that, how many are actually willing to abandon their kid just because there’s something wrong with it? Last, how many surrogate mothers would refuse the abortion? You’re talking about a tiny amount of people, so insurance or not, I believe public policy is better with this in place than not. And that is all based on the fact that we already have set the precedent that safe haven laws are a public good and is legal, and open to anyone. My concern about insurance is not really the money; it’s more basic that that. In this scenario the parents are knowing and intentionally taking steps which create a risk – that the child they bring into being will have a congenital disability, or some other characteristic which will make then not want the child. And, indeed, unless they are more than ordinarily stupid, they know they are creating that risk. In fact, they do know, because their surrogacy contract explicitly addresses it. In the contract they make it clear that they do not want to bear that risk. If we as a society accept and enforce that contract, we’re saying “that’s fine. Go ahead and create the risk. We will bear it for you.” This looks to me like a bad policy. A better one would support a degree of maturity and responsibility on the part of the intending parents. If they don’t want to bear the risk, they shouldn’t create it. If you’re not committed to being a parent to the child that you bring into being through a surrogacy arrangement, don’t enter into a surrogacy arrangement. I’m not suggesting that the parents should be forced to care for the child. The child’s best interests must always prevail, and it is not in the child’s interests to be put in the care of parents who really, really, don’t want the child and evidently feel that they shouldn’t have to have it. But I struggle to see how the child’s interests are served by absolving the parents of any _financial_ responsibility with respect to the child. There may be compelling public policy arguments why such a rule is necessary in “safe haven” laws. It’s inescapable, if parents are to be allowed to hand over their children anonymously. But it’s not obvious that these arguments apply equally here. Apart from anything else, they aren’t necessary to support the parental anonymity which is a central feature of save haven laws. In this scenario, in advance of the event actually arising the parents have put their names to a contract declaring their intention to abandon their child, should it not meet their specifications. Clearly, they’re not looking for anonymity with respect to their decision. ---
**Author:** ![The\_Flying\_Dutchman](https://avatars.discourse-cdn.com/v4/letter/t/9fc348/32.png) [@The\_Flying\_Dutchman](https://boards.straightdope.com/u/The_Flying_Dutchman)\ **Post date:** [November 2, 2010, 2:17am UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/71 "2010-11-02T02:17:02Z")
Hoiw about a prenuptial agreement whereby the bride contracts to have an abortion if neccessary to avoid any parental support obligation on the part of the groom ? I don’t think that contract would fly either. ---
**Author:** ![Annie-Xmas](https://avatars.discourse-cdn.com/v4/letter/a/ecc23a/32.png) [@Annie-Xmas](https://boards.straightdope.com/u/Annie-Xmas)\ **Post date:** [November 2, 2010, 2:23pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/72 "2010-11-02T14:23:38Z")
There has never been a court battle where conceived human embryos were transplanted into a uterus without the consent of both parties involved in the making. The most famous case, Davis v. Davis, involved a divorcing couple where the wife wanted to implant, but the husband didn’t. The lower case decided in favor of the wife (they are people0, the higher court reversed the decision and also ruled Ms. Davis could not surrender the eggs for donation. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [November 3, 2010, 4:32pm UTC](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527/73 "2010-11-03T16:32:52Z")
> [@UDS](#): > > My concern about insurance is not really the money; it’s more basic that that. > > In this scenario the parents are knowing and intentionally taking steps which create a risk – that the child they bring into being will have a congenital disability, or some other characteristic which will make then not want the child. And, indeed, unless they are more than ordinarily stupid, they know they are creating that risk. In fact, they do know, because their surrogacy contract explicitly addresses it. > > In the contract they make it clear that they do not want to bear that risk. > > If we as a society accept and enforce that contract, we’re saying “that’s fine. Go ahead and create the risk. We will bear it for you.” > > This looks to me like a bad policy. A better one would support a degree of maturity and responsibility on the part of the intending parents. If they don’t want to bear the risk, they shouldn’t create it. If you’re not committed to being a parent to the child that you bring into being through a surrogacy arrangement, don’t enter into a surrogacy arrangement. How’s that different from a mother getting pregnant herself and deciding to abort if the baby has a defect? Why does the addition of the 3rd party suddenly make the mother’s decision any better or worse? I see it as pragmatically the same. Most women don’t use surrogacy and would bear the child herself if she could. If she decides in her mind that any defect results in abortion or abandonment via the safe haven law, we get the exact same thing, only there’s no surrogate mother > [@UDS](#): > > I’m not suggesting that the parents should be forced to care for the child. The child’s best interests must always prevail, and it is not in the child’s interests to be put in the care of parents who really, really, don’t want the child and evidently feel that they shouldn’t have to have it. > > But I struggle to see how the child’s interests are served by absolving the parents of any _financial_ responsibility with respect to the child. How is the child’s interest being served by allowing mothers themselves to abort or abandon it, thus absolving themselves of the financial responsibility anyway? Why would the presence of a third party affect the interest of the child negatively? In fact, I think the child has more to gain from such a surrogate. If the bio-parents were allowed to remove responsibily, the surrogate is still there to take it up. The child wins with a parent either way! > [@UDS](#): > > There may be compelling public policy arguments why such a rule is necessary in “safe haven” laws. It’s inescapable, if parents are to be allowed to hand over their children anonymously. But it’s not obvious that these arguments apply equally here. Apart from anything else, they aren’t necessary to support the parental anonymity which is a central feature of save haven laws. In this scenario, in advance of the event actually arising the parents have put their names to a contract declaring their intention to abandon their child, should it not meet their specifications. Clearly, they’re not looking for anonymity with respect to their decision. And why should anonymity matter? Parent who give up their babies for adoption have to give out their information, but they can request a stipulation that the child not be given that info. [Previous page](https://boards.straightdope.com/t/surrogate-mother-with-down-syndrome-fetus-abortion-contractually-mandatory/558527.md?page=3)