Article didn’t say but from what I understand she stood to earn 200,000+ as long as she adhered to the contract regardless of what happened to the baby in her term.
I agree that it was a contract and the surrogate should follow it. Otherwise, we’d have cases where the surrogates get attached to the baby after birth and want to keep it. Should we make that legal too? I don’t think so, so a compromise is that the biological parents get to sign away their parental obligation if the surrogate won’t play ball
There’s a bit of a logical disconnect here. If we assume that a contract to have an abortion is not void as being against public policy then, yes, there should be a sanction for breach of the contract. But the proposed “compromise” is a sanction directed at the child, who isn’t a party to the contract and didn’t breach it. This is not a “compromise” in any recognisable sense of the word.
A “compromise” might be that the surrogate must wholly or partly indemnify the parents for their child support obligations.
Sorry, I should have fully answered the OP. I was referring only to the child support obligations for the biological parents, not the abortion. I do not think that you can or should force someone to have an abortion through a contract. That is a right I don’t believe one should be able to sign away. I feel that the contract can be valid if the parents have a clause saying that if the surrogate doesn’t abort, the bio-parents doesn’t have to pay any child support and essentially give up custody of the child to the surrogate
However, to respond to your point, I would disagree that if a contract stipulates that the child is to be aborted then it is far too reaching. I don’t think the child should have anything to do with it. If he’s never born, he never exists as a child, thus has no rights, and would lose nothing. Abortion isn’t killing a life, it’s terminating it before it becomes life (not “becomes alive”, big difference)
What if it’s an abortion for a pretty much fatal birth defect? There ARE degrees of birth defects. Not all genetic birth defects are severe or fatal. As a matter of fact, I thought that birth defects only accounted for a small percentage of childhood disabiites?
You can’t generally avoid your child support obligations simply by giving your child away. There’s an adoption procedure to be gone through if that’s the outcome the parents want; if they don’t go through it, then what you are proposing is simply child abandonment. It doesn’t cease to be abandonment merely because the parents have found somebody to abandon the child to.
Note also that in the OP the surrogate didn’t want custody of the child; she just didn’t want an abortion, and you and I agree that she shouldn’t have been compelled to have one.
It seems to me that a couple who choose to have a child through a surrogate are choosing an avenue in which the choice of abortion will not be open to them. They have to accept the consequences of their choice. (One way of looking at this, I suppose, is that the mother in this arrangement has placed herself in the position that a father, by nature, always finds himself – after conception, it’s out of his hands).
If a child is born which the bio-parents would have aborted, had that choice been available, they are in the same position as, e.g., a mother who didn’t choose to abort because a negligently-done amniocentesis failed to disclose Down’s syndrome, or indeed as a reluctant father always is. They are the parents of the child; they have financial (and other) obligations to it; they cannot escape these by any purely private contract. They can explore avenues for having the child taken into the care of the state, placed for adoption, etc, in the same way that any other parent could. Possibly the surrogate will be willing to adopt the child, but this will certainly involve the intervention of the courts. It’s not something that can be dealt with in the surrogacy contract.
Makes no difference how grave the defect is. The very ideas that give rise to a right to choose an abortion in the first place - rights of privacy, of autonomy, of bodily integrity - absolutely preclude enforcing a contract to have an abortion for any reason at all.
That was the situation in the “Baby M” case–Surrogate mother Mary Beth Whitehead wanted to keep her genetic child. She named her husband as the father on the birth certificate and later insisted on a paternity test because his vasectomy might have failed (she hadn’t gotten pregnant in 10 years) or “the fertility clinic might have used someone else’s semen.” Right.
The lower court upheld the contract, but the state court declared it illegal and unenforceable.
The whole “genetic vs. gestational” mother is a tough call. If genetics makes a woman the mother, would an identical twin have the right to custody?A female relative?
A child, once extant, has a right to support from its parents. Its parents cannot contract that right away on behalf of the child before it exists.
I think that was my quote. No, even for a pretty much fatal defect it wouldn’t be enforced. Not going to happen.
She made mer choice when she signed the contract and had the medical procedures needed to be a surrogate. I see nothing wrong with enforcing the abortion clause of the contract.
The problem comes from how one enforces that portion of the contract.
Do you jail her? Well you can’t because it’s a civil, not a criminal matter.
Do you fine her? How much? What would be an acceptable rate for this particular breach of contract? Besides, either of the two solutions mentioned here don’t solve the fundemental problem of an unwanted baby. The only thing that does is an abortion.
In general, one usual solution to a breach of contract is to have the court compel one party to adhere to the terms of the contract. In this case, it would be the court ordering an abortion.
In other words, the State mandating an abortion for a civil dispute.
Ignore the escape clause of the second requirement giving up parental rights and just focus on this particular outcome.
Bleh.
That’s incorrect. In many cities, like mine, there are laws that allow mothers to drop off a newborn at a government facility without question. We even have stickers on our department’s vehicles for it. You can drop off a child because society realizes that abandoned babies are a problem and the best solution for everyone involved is to allow mothers who otherwise can’t or won’t support a child to give it up to the state.
Then the state can have it. To me, it’s a worse infringement on rights to force someone who didn’t want to a child to have one, than to put a child into an existing system of foster families
And that is not contracting the child’s rights away. Of course there are situations where parental rights may be terminated. However, writing a contract before birth isn’t one of them.
What UDS said was that one cannot avoid their parental obligations, I’ve shown that it can.
Your example was a little different involving contracting away parental rights before the birth. I agree it doesn’t fit perfectly, but in the end the actions fit the example if not the spirit. I feel that as long as such a program exists to allow newborns to be dropped off, then parental obligation is something that can be voluntarily given up prior to or after birth
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.
And the outcome of this situation is that the mother of the child retains the burden of support of the child. It’s only complicated because it’s the mother who is assuming that responsibility, instead of the mother.
In other words, which of the two is the mother? The long legal precedent is that the baby needs to be cared for, and since somebody has to do it, assigns the responsibility to the parents. It’s not that it necessarily has to be the parents; they’re just the first people available for the law to look to. But most of that long legal precedent doesn’t distinguish between the genetic parents and the gestational parents, because that distinction didn’t even exist until recently. So it hardly goes against the letter of the law to shift responsibility from one of those to the other. Nor does it go against the intention of the law, since the child still receives support. If it goes against neither the letter nor the intention of the law, then what’s the problem?
Minor quibble: I kind of doubt that the city can pass a local law to exempt parents from obligations recognised and enforced by state or national law. There has to be some integration with the state/national legislation on this point.
But point taken. If you can escape parental responsiblities by leaving your child at a designated facility, then you can. But it is the parents, not the surrogate, who must take that decision. They don’t, on your account, need any kind of contract with the surrogate, in order to take advantage of this procedure. More to the point, the contract with the surrogate doesn’t substitute for this procedure; they will have to bring the child, or make an arrangement for someone else to bring the child, to the appropriate facility.
The contract, in other words, acheives nothing at all with respect to parental responsiblity. The parents are in exactly the same position as any parents of a child that they don’t want.
Nobody is forcing the parents to have a child. They chose to have one, and indeed went to very considerable expense and trouble to have one.
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.
I’m not sure what you mean here - you say mother twice.
This is all true - the law could be written differently, and probably needs to be written to take account of new developments in parenting. I am not certain if you are saying that the law could be changed - obviously it could. The law can be changed to allow anything. At the moment, under current law, contracting a future child’s rights away is not permitted. It certainly could be - whether it should be is definitely an interesting question.