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.
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.
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.
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.
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.
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.
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.
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?
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.
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?
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.
Did the contract pay her the same amount regardless of whether there was a live birth?
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”
This sounds pretty close to what I would guess.
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.
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?
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:
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.
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.