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Choice devours itself--contractually forced abortion in the U.S.?

Here is a story that contained some statements that surprised me.

But before I start talking about the statements that surprised me, I want to emphasize something for my readers from the left: The things that I find outrageous in this story are being reported by people who do not think they are outrageous. In fact, the one I think the most outrageous is a claim being made by a Canadian who thinks that the U.S. does things "better" in this respect than Canada. So let's please not have any nonsense about conservative "lies," conservative "hysteria," and conservatives who uncritically pass on other conservatives' "lies" and "hysteria."

Okay, moving on:

A Canadian treating doctor reports, keeping names confidential, that he has had a couple and a surrogate mother involved in a dispute in which the couple wanted the surrogate mother to abort the child because it was suspected of the capital crime of having Down Syndrome. The surrogate at first refused. The surrogacy contract evidently specified that under these circumstances the biological parents (the "commissioning" couple) would have no responsibility for the child. So in the end, the surrogate aborted the child because of her own "family responsibilities." In other words, as I take it, she hadn't bargained for getting saddled with raising a handicapped child who wasn't biologically her own, in addition to her own children, so she gave in to the pressure and had the child aborted.

There is, however, some question as to whether such a contract (a "contract" on a child found to be handicapped) would actually have been enforceable in Canada. In other words, the biological parents might have had to take responsibility for the child regardless of what the contract said. But the surrogate decided not to push it.

In response to the possibility that the contract would have been unenforceable in Canada, we get this mature and penetrating bit of ethical commentary from one Sally Rhoads (emphasis added):

Sally Rhoads, of Surrogacy in Canada Online, said decisions pertaining to the future of a defective fetus should be made at the outset. Furthermore, she argued for the protection of the commissioning couple. 'The baby that's being carried is their baby. It's usually their genetic offspring', she said. 'Why should the intended parents be forced to raise a child they didn't want? It's not fair'. Ms Rhoads points to the United States where, in some states, the commissioning couple can sue the surrogate to recover costs if the surrogate continues with a pregnancy against the couple's wishes.

You got that? Supposedly, according to Ms. Rhoads, America is more enlightened than Canada, because in some states in America the biological parents who have contracted to rent a womb can sue to get back money they've already paid out if they change their minds and want the child aborted. I suppose if the carrying mother has already recklessly spent the money on anything like food, clothing, or prenatal care, she's out of luck, plus having a little baby of her own on the way. Charming, no?

I've tried to confirm this statement about the U.S. I found this site on surrogacy law in the U.S., but I could find nowhere in the links where the site addressed this particular issue, having (shall we say) other legal priorities. However, I should point out that as far as I can tell even the many states that have no express law on surrogacy on the books could easily elect to treat surrogacy as merely a branch of contract law, in which case such heinous contracts as Ms. Rhoads loves might indeed be enforceable. Obviously, it's going to be very difficult to follow up on her remarks without further specifics on the states she has in mind out of all the fifty and on the case law or statutory law she has in mind.

On the assumption that Rhoads is right about at least some states, this seems to me to be a loophole that pro-life lawmakers in the states should get on to right away. Not being a lawyer, I don't know how simple it would be to fix, but here's a suggestion for starters:

No contract shall be enforceable within this state if said contract requires any person to agree to the termination of a pregnancy or contains any contractual forfeiture, penalty, or provision for recovery of costs in consideration of a refusal to terminate a pregnancy.

Meanwhile, I'll only add: So much for being pro-choice, Ms. Rhoads. I wonder how often she has said she's in favor of a woman's right to control her own body.

HT: Secondhand Smoke

Comments (36)

This is interesting and your report seems fair. Here are some sample contracts from that site. All of them have abortion provisions that vary on responsibility. I don't see any obvious case law on a casual glance. You can't compel someone to have an abortion and you can't likely stop someone. I'm not sure how enforceable the various responsibility section would be. Not sure how choice devours itself here.


There is a discussion here,

426 Mass. 501 (1998)
M.H. & another.

I assume you have easy access to JSTOR. There are several law review articles on surrogacy contracts.

My first response (admittedly I might change it after thinking about it more) is that for state law, the surrogate mother IS THE MOTHER, period. End of thought, end of dispute about who has the right to determine the abortion.

As a separate issue, I follow along and agree with Lydia - nobody has the right to make a valid contract that contracts to submit to an abortion under X conditions, or forfeits some penalty if not submitting to an abortion. The entire body of law about abortion supposes that the right of the mother over her own body trumps other rights, because of the intimate immediacy of her own person. Since the mother cannot sell herself into slavery, neither can she sell her womb into slavery. Any contract demanding an abortion constitutes physical slavery with respect to her womb. We don't allow people to sell an eye or a kidney, do we? (The same probably applies to surrogacy itself, which may mean that a contract to be a surrogate mother is, ITSELF, unenforceable. Gee, that wouldn't bother me either.)

The casual use of the phrase "defective fetus" should be terrifying. This spokeswoman speaks as if that baby--so wanted and desired minutes before the genetic testing by the biological parents--is not simply a piece of trash, damaged goods. As if killing--and forcing another person to go along with killing--your "defective" child is equivalent to refusing delivery of a damaged stereo.

Gradchica, that's exactly right. That's how they do think.

Al, thanks so much. Clicked on one of those sample contracts, which I hadn't found before, and found confirmation of the claim. Here is the relevant section, which evidently they expect to be enforceable, since they are suggesting it as legal language:

If the fetus(es) has been determined by any designated physician to be physically or psychologically abnormal, the decision to abort the pregnancy or not to abort the pregnancy shall be the sole decision of the Genetic Father and Intended Mother.

The Surrogate agrees to accept a clinical abortion under the circumstances stated in the foregoing paragraphs. However, in the event that the Surrogate refuses to proceed with a clinical abortion, Surrogate agrees to the termination of all expenses under Section IX of this Agreement. Further, Genetic Father and Intended Mother shall not be responsible for those medical expenses incurred by the Surrogate due to unforeseen complications of which would have been avoided had an abortion occurred. Furthermore, in the event that the Surrogate refuses to proceed with a clinical abortion, all further performance required by the Genetic Father and Intended Mother under the terms of this Agreement is excused.

How does choice devour itself? Here goes:

The legality of abortion was originally sold to the masses as a matter of the mother's choice and the evil of "forcing" women to continue pregnancies they don't want, to lose "control over their own bodies" by law. This, presumably, was supposed to apply to situations where a woman agreed originally to have a child but later changed her mind. In the presently envisaged scenario, we have a woman who agreed originally to abort under specified circumstances but, once pregnant, felt bonded with the child and changed her mind. Following me so far? But she is supposed to be punished by forfeiture of expenses already paid (which apparently she can be sued to recover) and losing the assistance and parental responsibility that the biological parents had originally agreed to give if she now refuses to abort.

"...we have a woman who agreed originally to abort under specified circumstances but, once pregnant, felt bonded with the child and changed her mind. Following me so far? But she is supposed to be punished by forfeiture of expenses already paid (which apparently she can be sued to recover) and losing the assistance and parental responsibility that the biological parents had originally agreed to give if she now refuses to abort."

Except, as you pointed out, those provisions are likely not enforceable in Canada and I don't see them being enforced here. They seem way too coercive to me - public policy, shocks the conscience, etc. I don't see a court enforcing a contract that created a pathway for a parent to evade parental responsibility. A man who used the defense, "she agreed to get an abortion if contraception failed", against paying child support would be laughed out of court. Putting it in writing doesn't (or least shouldn't) change that.

I doubt that a cost recovery provision would pass muster, but the language Lydia quoted only releases the biological parents from future financial responsibility. I see no reason why this wouldn't be enforced. It's not like there's a specific performance provision for a court-ordered abortion.

It's hardly against public policy to abort a "defective fetus" because of the cost and hardship involved. With Lydia's quoted language, they avoid the hardship without killing the child. Courts would likely view it as a win-win.

I don't see a court enforcing a contract that created a pathway for a parent to evade parental responsibility.

Al, I would like to think you are right here, but I am not confident that all judges would view it the same way.

In any case, it seems to me that all surrogacy contracts should be null and void under standard US law. The surrogate mother is the putative mother for legal purposes, until there is something that says she is not the mother. I would have thought that the surrogacy contract itself cannot be the "something" that changes the root fact that the surrogate is the mother, because that contract cannot be recognized as valid until the state agrees to allow the mother to give up her child to the commissioning parents. But normal state law does not allow any such change of parental persons without direct state approval: adoption proceedings. State adoption proceedings ALWAYS require that there be no money that transfers from the adoptive parents to the mother (except direct medical costs, sometimes), because the state insists that you cannot "buy" or "sell" babies. But the surrogacy contract is exactly that, transferring a baby from the mother to new parents for monetary gain.

From Humanae Vitae(although not exactly on topic, it seems to apply):

Consequently, unless we are willing that the responsibility of procreating life should be left to the arbitrary decision of men, we must accept that there are certain limits, beyond which it is wrong to go, to the power of man over his own body and its natural functions—limits, let it be said, which no one, whether as a private individual or as a public authority, can lawfully exceed. These limits are expressly imposed because of the reverence due to the whole human organism and its natural functions, in the light of the principles We stated earlier, and in accordance with a correct understanding of the "principle of totality" enunciated by Our predecessor Pope Pius XII. (21)

The Chicken

Tony, many of the states claim that they enforce only "non-compensated" surrogacy contracts, but apparently that does allow for payment of expenses. As I conjectured in the main post, Rhoads's statement could be true if the mother had already received money intended for her costs and then refused to abort.

Also, if a state has no law on surrogacy one way or another, it remains open that even "compensated" surrogacy contracts might be enforced.

Al is very confident that, as was _conjectured_ in the Canada case, the courts would have applied state family law as far as responsibility for the child had it been born rather than contract law. I did not say that the provisions are not enforceable in Canada, only that a question has arisen about this. Let's remember that the surrogate in the Canada case clearly thought that either a) the provisions were enforceable, so the biological parents would have no responsibility or b) working that out legally would be too difficult or expensive. That seems to be the only way to interpret her eventual decision to abort the child "because of her own family responsibilities."

In the U.S., to leave the matter grey and simply to say, "Oh, I _bet_ these provisions aren't enforceable" is simply to leave open other surrogates to the same pressure. After all, this contractual language is recommended by organizations that are pro-surrogacy and who clearly believe that it is enforceable. If everybody signs it, why should the parties to the contract think otherwise?

I would like to know why Rhoads makes the contrast she does with Canada. To me, her statement sounds like she has something specific in mind re. some state or states in the U.S.

This is cold-blooded as hell. Bt this is what happens when yo treat hman life as a commodity to be broght and sold in the marketplace.

many of the states claim that they enforce only "non-compensated" surrogacy contracts, but apparently that does allow for payment of expenses.

True, but apparently FL and CA do allow commercial contracts for surrogacy. Which, as far as I can tell, constitutes a form of temporary slavery.

But whether the contract is for profit (as, surely, many are even in states that say they don't allow them) or not for profit, the issue still comes up as to who the law treats as the presumptive mother. If the surrogate is, then why doesn't the state get involved with adoption and Child Protection Services when the baby is born? A contract to hand over the baby (even without pay) would seem to violate the principles that the adoption area of law rests on: that even with the willing choice of the mother, putting the child into the hands of new parents requires state intervention, home study, approval, etc. If a surrogate contract can waive all that aside, then why, oh WHY cannot any mother who decides to give her baby up for adoption do exactly the same thing? Why the double standard?

putting the child into the hands of new parents requires state intervention,

Hdo you define motherhood?

The Chicken

putting the child into the hands of new parents requires state intervention,

How do you define motherhood? Does one really have two sets of parents? I suppose the surrogate should get first dibs because of epigentics of the womb.

The Chicken

'Why should the intended parents be forced to raise a child they didn't want? It's not fair'

This comment is absolutely breathtaking. In one stroke it exposes the infantile depravity of the sexually liberated mindset and its ideology of self gratification uber alles. Moralistic sounding words like "fair" and "just" have been co-opted in order to rationalize the modern liberal's "lifestyle choices." "Fair" has been defined-down to mean "what I want when and how I want it." What a bunch of selfish ghouls these people are.

"They seem way too coercive to me - public policy, shocks the conscience, etc. I don't see a court enforcing a contract that created a pathway for a parent to evade parental responsibility. "

How does the Court know who the parent is?

Untenured, exactly. I can't believe she didn't hear herself. Like a whiny kid: "It's not faaaaaair." To make it even crazier and more horrible, the couple in question _did_ want the child but later decided they _didn't_ want it. So what's supposed to be "not fair" is the inability to ditch parental responsibility instantaneously when you discover your previously much-wanted child is handicapped. "Ghoulish" about says it all.

Tony, you have an excellent point. What these contracts are is essentially pre-agreed adoption contracts, which would normally not be allowed. I would be absolutely fine with it if none of them were enforceable, period, that's it. In that case, the surrogate just would be the mother no matter what and would know up front (if any lawyer worth his salt in the state advised her) that she would be the legal mother of the child, so that there would be no point in undertaking the surrogacy situation in that state to begin with.

Frank, it's a good question, but presumably in states that enforce surrogacy contracts, the court takes the word of the three people involved that the "commissioning couple" are the biological parents. A DNA test could be done if necessary, I suppose.

Chicken, that's a huge problem with surrogacy contracts: They separate the different definitions of "mother" which should normally come together, and they do so deliberately and by the very arrangement of the child's conception in the first place. As you know, I'm a huge advocate of adoption. But adoption is undertaken after-the-fact. It's a whole different matter to arrange ab initio, before the unborn child is even conceived, to have Mother#1 be the womb-mother and Mother#2 be the genetic bio mother. That's just completely wrong for the child.

Sociologically, I think it's no accident that the contract to abort should be part of all of this. The entire arrangement has a strong whiff of commodifying the child built into it.

"How does the Court know who the parent is?"

There is family law and a number of court decisions on this matter.

"The question to the court in In re Marriage of Buzzanca (March 10, 1998) was whether a married couple who used both anonymously donated sperm and egg and used a surrogate to carry the child, were the parents of the child born six days after the husband filed for divorce. (The husband filed for divorce six days before the birth of the child, and the intended father claimed that since he was not the biological father of the child, he was not the child's father and could not be forced to adopt.) The case was heard by the California Fourth District Appellate Court, who issued its decisive opinion on March 10, 1998, declaring both intended parents to be the parents of the child.

"The California Supreme Court, in the 1993 seminal case of Johnson v. Calvert (1993) 5 Cal.4th 84 held that the gestational surrogate had no parental rights to a child born to her, affirming a lower Court ruling that a gestational surrogacy contract was legal and enforceable. The Johnson court reasoned that there were two distinct ways to prove maternity using the existing California Family Law Code; first by proof of giving birth to the child, and second, by proving genetic consanguinity (blood tests). When two women can so prove they are the mother (as is the case in gestational surrogacy) the Johnson Court held that the one who intended to "bring about the birth of a child that she intended to raise as her own -- is the natural mother under California law." In footnote 10, the Court stated in effect that the intended mother who carries a child born from donated egg is the mother of the child by the same reasoning."

"Soos v. Superior Court County of Maricopa
897 P.2d 1356 (Ariz. App. Div. 1 1994)

This case declared unconstitutional the Arizona surrogacy statute which conclusively presumed that a gestational surrogate is the legal mother of the child to be born and is entitled to custody of that child.

The Appellate Court found that the statute offended the Equal Protection Clause of both the United States and Arizona Constitutions, in that the biological father of a child born through gestational surrogacy could petition a court to be declared the father of the child; however, the biological mother of the child was precluded from doing likewise as the surrogate was deemed to be the legal mother under the statute."

There's more.

Lydia, I don't think we can rely on the offhand comment of some idiot in Canada. We are dealing with some fundamental issues and she clearly doesn't get that.

Al, there are two questions going on here: First, what _would_ happen if someone in America tried to challenge such a surrogacy arrangement? (Could the commissioning couple actually sue for recovery of costs as claimed?) Second, what would the surrogate and others actually involved in the situation _believe_ would happen?

There is serious pressure on the surrogate based on the appearance of an enforceable contract. That appearance is not simply supported by the words of an idiot in Canada but by the existence of such contracts in the U.S., contracts recommended for use as if they are actually legally enforceable.

It does no good to the surrogate who has already reluctantly aborted the child under the impression that she would otherwise be able to be sued for recovery of costs to tell her, "Oh, that probably wouldn't have been allowed to go through by the court in the end." Not to mention the legal and psychological costs to her involved simply in resisting the _attempt_ to enforce the contract.

"(Could the commissioning couple actually sue for recovery of costs as claimed?)"

One can file, my guess, as I can find no actual case law, is that those clauses are unenforceable. Parents have considerable control over their children ("you're grounded," "you are going to boarding school." etc.) yet a minor can't be coerced into an abortion by her parents (legally, at least). Choosing to carry or not and parenting issues are fundamental to our concepts of autonomy and human dignity. No court is going to treat these things lightly. There are things you can't contract away. Just a thought, suppose a surrogate agreed not to abort under any circumstances and then does to save her health or life. Think those clauses would be enforced?

Those clauses are there to focus the mind. As surrogates have all borne children previously, I assume you would want to find out where folks are on this issue. We don't know how thoroughly the surrogate was vetted in the instant case; I assume the couple's lawyer would have gone over the specific possibility of a Downs Syndrome situation with the surrogate but maybe not. Anyway, life is full of risks and my inclination, and I believe any courts, would be to consider that the initiating couple assumed the foreseeable and inherent risks in the possibility that the carrying mother would have a change of heart.

That's nice, Al, and I hope you're right. I maintain, though, that it isn't a cut and dried matter, that the surrogate could not be sure, and that the existence of the contract and the prima facie appearance to her of enforceability creates a coercive situation.

If you had a surrogate who didn't want to abort who came to you for legal advice after signing such a contract, what would you tell her? "Don't sweat it. They'll have to support the child"? "Don't send them a check to refund the medical expenses they've already paid that they say you owe them back"? But of course, she'd have to pay you just to tell her that and to represent her in the subsequent proceedings.

Al, I think your autonomy and human dignity analysis would be spot on if we were dealing with, say, a provision allowing the commissioning couple to get an injunction to force the surrogate to get an abortion. Such a thing would be laughed out of any court in the US.

On the other hand a cost-recovery clause or a "no support if you don't abort" clause wouldn't contract away her autonomy. She would simply be forfeiting her contractual right to have someone else pay her child bearing expenses. I think the issue would turn on the rather mundane contract law question of whether it's a penalty or liquidated damages. Gotta cut this short, but I'd say that cost-recovery is unenforceable as a penalty, but a "no support" clause would be upheld.


Such contracts are totally illegal and null ab initio in Quebec. The Civil Code specifically and explicitly prohibits surrogacy.


Al, thanks for giving us those two court cases. It helps to have actual decisions with real-life rationales stated.

When two women can so prove they are the mother (as is the case in gestational surrogacy) the Johnson Court held that the one who intended to "bring about the birth of a child that she intended to raise as her own -- is the natural mother under California law."

This reasoning presents a real problem. If a girl is raped and gets pregnant, she never "intended to bring about the birth of a child that she intended to raise as her own" at all. Is the child, then, without a mother? Of course not. The child has a mother in both the genetic sense and in the gestational/birth sense. What if the rape victim wants to abort, and some adoptive mother comes along and convinces her to maintain the pregnancy and give the child for adoption: is the adoptive mother - the mother who intends to raise the child - the presumptive mother before the law? Of course not, she is not THE MOTHER before law until the state assigns her rights through adoption proceedings.

The test that the court lays down, one of intention, is defective philosophically because it tries to resolve a matter that is not fundamentally a matter of intention by what people intended to do (which, by the way, can change 50 times in 50 days, and is totally apart from the facts of both gestation and genes. What if the commissioning mother sues after 1 month to dissolve the contract because she no longer intends to raise the baby? And declares that she will give the baby up for adoption? Does her lack of intention dissolve her motherhood? What if her husband signed the contract, but she did not: is only her husband the legal parent by reason of intention, and not her? What if there are 3 mothers: the genetic source, the gestational bearer, and the commissioning agent? And all 3 of them change their minds mid-stream: the commissioning mother no longer wants the baby, and BOTH the gestational and genetic mother DO want the baby? Must the commissioning mother take delivery of the baby and then give the baby up for adoption? What if a woman puts several eggs in the freezer "for later, when she is ready" and someone else comes along and steals them and puts them in a 3rd party gestational mother to bear...and the egg donor discovers it: is she (a) legally the presumptive mother whether or not she wants to be, or (b) only the presumptive mother if she actively seeks to be, or (c) is not the mother unless the gestational mother gives up her claim, or (d) is not the legal mother at all?

You see that the judge's reasoning doesn't really hold up when examined. The whole idea of the court trying to come up with a determination of "better" rights between genetic source and gestational input is fraught with difficulty, and adding intention merely adds a 3rd category of participant without simplifying the matter. It presumes many, many premises about causality, about identity, about meaning that simply are not givens. The ancient Jews, for example, would have laughed the genetic source issue out of court as being a complete irrelevancy. Even biologically (as distinguished from genetically), there is some doubt about what contribution ought to be ascribed to the gestational mother: the switching on and off of certain genes, the expression of the theoretical template into actual protein production, depends on precursor triggers - hormones and other chemicals in the environment. We simply don't know how much the gestational mother's womb contributes to the distinct "who" of the child.

Regarding the Arizona decision: Do I need to bring up the case of the couple who went in for IVF and had the idiot doctor use his own sperm [or, use her own eggs] in place of the supposed "genetic parent's" donation to conceive the child? Do I? Does this substitution displace the supposed genetic parent's rights?

All this duplicitous, problematical issue only arises because people evilly try to separate production of a baby from natural conception. The law and the courts SHOULD have relegated this problem to a non-issue 30 years ago, with the invention of IVF methods, by (a) clapping all parties in jail, and (b) adopting out all babies to unrelated parties, so nobody "benefits" by it. That would have squelched the activity. Instead, now we have production of babies constituting an "industry" that clearly commodifies human beings. We will see where that commodity takes us: There will soon be a case of choosing an IVF-based birth in order to grow an older sibling a kidney. This is not merely a prediction, it is a moral certainty based on the degenerate legal and moral climate surrounding this industry. Maybe we should put a law in place NOW that prohibits a sibling donating an organ to an older sibling, unless the discovery of the the older sibling's problem was at least 10 years after the birth of the younger sibling.

Tony: You do know that there's already a phrase for that? The phrase is "savior siblings," and it's being discussed already by bioethicists. I don't know if there have yet been cases that have actually been done with organ donation and also with IVF, but the natural conception of a younger sibling for bone marrow donation is old news. Happened years and years ago.

Looks like a scientist named Yuri Verlinsky did a "savior sibling" case with IVF--preselecting the child that would be most likely to be a "savior" in 2001. I haven't gotten details about the condition, but it looks like it may have been a blood condition, which would presumably mean bone marrow rather than organ. My perception is that the siblings who didn't have the "savior" potential were discarded at the IVF stage.

Lydia, I did not remember hearing of any IVF / surrogacy transactions for savior siblings. Surely this is something the law can prohibit, even without looking at IVF as intrinsically evil. But given the apparent willingness of judges and lawmakers to try to make sense out of it all without noticing that baby production outside of natural conception is the origin of the problem, I suppose it is not very likely that we will put that genie back in the bottle. A culture that must argue (with great angst) its way to thinking that divorce might not be good for children, and that homosexuality might not be a normal "lifestyle" is degenerate enough that trying to divide up "motherhood" into intentional, and genetic, and gestational, and fiscal, and caregiver...(any others?)...components won't faze it.

As I say, the claim is that Verlinsky did an actual one--don't know in what country. I imagine there have been quite a few with bone marrow transplants, because bone marrow transplants leave no long-term health consequences for the donor (unlike a kidney donation, which leaves you with only one kidney and hence potentially more vulnerable in conceivable later situations).

My perception is that the savior sibling genie is well and truly out of the bottle, and as far as combining it with IVF, that's out of the bottle as well. Of course it could be outlawed, but it won't be.

Once you believe that the zygotes among which the choice is made for IVF are non-persons, throwing out the ones you don't want isn't going to faze you, and neither (as the main story makes clear) is aborting even at a later stage.

Huge, huge mess we've gotten ourselves into.

CJ it seems to me the expense issue would be moot for Canada due to their single payer system. Once the child is born, it will have its own set of rights. Normally any change in parental rights and duties has to involve an action by some court, not just a contract. This would wind up in court and I can't see that clause passing muster. I would argue that the couple lost their fundamental right not to reproduce when the embryo was implanted. Any pregnancy involves risks and comes with no guarantees as to outcome. In a normal situation, a married couple, if testing showed a defect, it would still be the mother's (wife's) call and the father (husband) is still going to have parental responsibility. Courts generally recognize contracts that make clear an intent to parent. I don't think those contracts can be fine tuned to include only an acceptable product.

This was from another story and confirms my assumption that this wasn't well thought out. I would assume an experience surrogacy lawyer would have done a better job.

"The couple and the surrogate always got along and their disagreement on what to do never became acrimonious or tense, Dr. Seethram said. But the physician with Pacific Centre for Reproductive Medicine said it appeared to him that the three had never seriously considered such a scenario before the pregnancy."

Read more: http://www.nationalpost.com/news/Couple+urged+surrogate+abort+fetus+defect/3628756/story.html#ixzz12Tg989qi

I'd love to know the back story on this. Was the surrogate a friend? Was their lawyer a specialist (this is a highly specialized field)? Did they even have a lawyer or did they just download a contract like one of those I referenced above? If the couple had a lawyer, did the surrogate have separate counsel (important)? Was prior psychological counseling for everyone done?

Los Angeles morning radio host Bill Handel is also a lawyer who specializes in surrogacy.


This was taken from their site.

"A surrogacy contract should contain provisions which:

1. Establish the intent of the parties as to parental rights.

3. Establish the intended parents financial responsibility for the child irrespective of any physiological problem.

6. Provide all parties with current status of the law (e.g. abortion rights, the fact that legally the surrogate may not be forced to give up the child in the case of artificial insemination and the lack of surrogates' rights in In Vitro Fertilization)."

#3 would seem to imply the assumption, at least by CSP, that courts are unlikely to accept those clauses in other contracts.

Just another thought or two.

What would be the appropriate compensation for entering into a contract that had the possibility of a huge liability should one exercise ones fundamental rights?

Who would advise a client to sign such a contract, especially if the compensation was nominal?

I would argue that the couple lost their fundamental right not to reproduce when the embryo was implanted.

Al, why do you select out this moment as the deciding point? Certainly aborting mothers don't think that implantation is a critical point for deciding whether to "reproduce". The abortion industry argues that you haven't reproduced until the baby is born. Even those who merely oppose third-trimester abortions think you still have a "right to decide whether to reproduce" throughout the first trimester.

I suppose that it is possible to be irrational and self-inconsistent, and say that choosing to copulate does not result in a choice to reproduce until the baby is born so you retain a right to an abortion before that point, whereas choosing to implant with IVF is a choice to reproduce of itself, so you lose the right to an abortion upon implantation. But then of course that would preclude all of the abortions in the IVF industry with defective babies, or too many babies, etc. Which would be a grave blow to the industry.

Any way you cut it or slice it (ugh, bad metaphor), the industry is caught up in a bad conceptual framework with regard to contract law, and this ultimately is because becoming a mother is not supposed to be a matter of contract.

"Al, why do you select out this moment as the deciding point?"

Reflecting on Davis v. Davis. Legally, embryos aren't people. A husband or parent can't compel a wife or child to abort or carry. Generally speaking surrogacy doesn't create a bailment. The surrogate doesn't lose her constitutional rights by entering into a surrogacy contract. Normally the male loses control rather early in the process, with surrogacy it would seem that is the case for the intended mother also.

The casual use of the phrase "defective fetus" should be terrifying. This spokeswoman speaks as if that baby--so wanted and desired minutes before the genetic testing by the biological parents--is not simply a piece of trash, damaged goods. As if killing--and forcing another person to go along with killing--your "defective" child is equivalent to refusing delivery of a damaged stereo.

You can easily turn this into a teachable moment by showing a person of normal intelligence who makes this argument that a person with a 130 IQ is roughly comparable to a person of normal intelligence (100 IQ or slightly less) in the same way they are to someone who is mildly retarded. Once you get into the 150-160 range, the comparison is far worse for the person of normal intelligence.

The ugly truth about abortion and intelligence is that to the modern world, people of average intelligence are only slightly less useless than people with some form of retardation. I would personally argue that they are substantially more useless as a class, as people with mild retardation tend to create fewer problems for society...

Which goes along with the fact that "defect" can be (rather, WILL be) taken in an utterly subjective and superficial manner: "Oh, heck, I was trying for a blond girl, not a brunette. Well, abort her, and we'll start over."

Absolutely, Tony. I'd have to double check this, but by my recollection they've already done pre-implantation diagnosis _for_ deafness when one couple wanted deliberately to have a deaf child. (I know they did deliberately try to have a deaf child. My only uncertainty is whether this was done by pre-implantation diagnosis with IVF or by some sort of sperm/egg sorting before IVF.)

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