Wednesday, November 02, 2005


Say a couple can't have a child. And say they get their respective "parental material" and have a doctor do in vitro fertilization. They find a surrogate, and get the embryo implanted in her womb.

Hypothetically, if the surrogate, at just before the end of the first trimester, determines that she no longer wants to carry the child, can she get an abortion?

Hypothetical #2, if the parents, at just before the end of the first trimester, determine that they no longer want the child, can they make the surrogate get an abortion?

Keep in mind that courts don't generally (ever?) enforce surrogacy contracts, so who ever has the right to an abortion in this case would completely trump any claims of the other party, including breach of contract compensation.

So, myself being entirely against abortion (except to protect the life of the mother), I'd say no one has the right to abortion in this case. But that's not a valid answer to this question. I'm not completely sure what all are relevant considerations in this case. I'd love to get the thoughts of others. Tell me what you think.

So tell me what you want, what you really really want


Justin Gannon said...

I can see where some would say that the parents can "always find another surrogate", however they might not be taking into consideration the contract as well as the costs to the parents. In-vitro is not a cheap procedure, and many times it doesn't even take hold on the first try.

Rights to the body of the mother notwithstanding, there are other things to consider.

And that's why I think a lawsuit is an acceptable response to a termination by the surrogate mother.

In-vitro costs a small forture, and to take all the costs and then compensation and make it all for naught cause someone suddenly changed her mind is pretty wrong, and probably considered stealing if you look at it that way.

So, should so happen the surrogate should want to terminate the pregnancy, she should be required to pay the medical costs, and repay the compensation.

emnovak said...

I totally know the song-it's spice girls wannabe. that's right, I finally got a song, and I'm not posting a dang thing (this time) about the actual post. Even better, I actually have that song on my computer.

the marvelous patric said...

i reckon i shouldn't comment on abortion seeing as how i can't have one.
the minute they have testicular abortions, i'll have a position.

dyk said...

Let us complicate the matter by pointing out that such matters do not take place in a timeless vacuum. (I'm not saying you didn't recognize that, but there was no mention.)

Suppose that Surrogate Mom wishes to abort for personal, non-life threatening reasons. Naturally, a court-order will be established that she not abort until the matter can be settled.

At this point, Surrogate Mom has two options. First, she can wait for the matter to be settled prior to having the abortion, which will not happen because of the length of time required in the judicial process. I'd expect a fight from the Want To Be Parents, because if they have the money for in vitro, they'll probably be willing and able to fight a legal battle. Not to mention the pressure that would be placed on them (and financial support) by Pro-life groups in what would undoubtedly be a high-profile case.

When she does have the baby, it would of course be in her interest to fullfill the contract. You've said that surrogacy contracts are rarely enforced, so if she attempts to keep the child, (which would be odd after a fight to abort it) that's another matter.

SMs other option when a court-order is established is to defy the order and abort the child.

At this point she would be in breach of a contract that you have just told us is rarely enforced. I agree with the Fool who says that compensation for the WTBPs is appropriate, at least for the expense incurred from the point when SM stepped into the picture and established the contract, and especially if the termination is for personal reasons.

Hypothetical Number Two.

If the WTBPs decide that they no longer wish to have this child, I can see it going in a couple of different directions.

They may claim that the material and the process are both their doing and therefore the child is theirs to do with as they are legally permitted. They might use that claim to request an abortion.

SM could easily defend herself by saying that this is forcing upon her unnecessary harm, both physical and emotional, which is certainly justifiable. SM may also have moral obligations to doing so.

At the end of this legal battle, SM will either have already had the child or will likely defy any order by the court to comply with the WTBPs' wishes.

At that point, my question is who is responsible for the child? If SM doesn't want an abortion but does not want the child, is her only option to comply with the court order/parents' wishes? Can the WTBPs simply exit a surrogacy contract and leave the child to the SM? Obviously that is a significant burden in SM, and such actions would fall somewhere along the lines of "Deadbeat Dad(and Mom)" and would owe the SM or the state, should the child be entirely parentless, monetary support for that child.

If the WTBPs simply breach the contract leaving the SM to her own devices, I say that they owe support for that child. If they make a claim on an abortion, they can claim that that SM is in breach of contract, that they tried to do the 'responsible' thing, and would at least have some grounds for argument.

I would think that a lot of these matters would be spelled out in a surrogacy contract, but then I wouldn't understand why such contracts would be so difficult to enforce. Perhaps you meant only certain aspects. I'm not familiar the particulars of many of these situations.

I would also wonder how the WTBPs in a surrogacy contract would try to enforce the SM being a responsible SM. What happens if the SM turns out to be a heavy smoker or drinker? Is the burden of selecting someone responsible on the WTBPs? What if there is damage to the child that can be reasonably tied to the mother's behavior?

Relevant considerations, methinks.

Eric Michael Peterson said...

along the line of what to do if the sm gets stuck with the baby... isn't the first reasonable answer in that case that the sm gives up said child for adoption? if she was planning on having the child and giving it away anyway adoption would not change any of that, but rather just change the receiving party... so i do not really see too much of a problem in this case. and two if she does decide to keep it, assuming the contributing parents do not want it, they should not owe her anything legally. it would be no different than if she herself decided to have a child on her own, in which case there is no third party paying for the child there (other than maybe the state). so basically i think that point is somewhat ridiculous to argue about; whether or not the parents decide they want it anymore doesn’t change anything, the baby can still go on to other parents… and there is not really a shortage of people wanting newborns nowadays.

emnovak said...

At the same time, what if the sm decides she doesn't want the responsibility of putting the child up for adoption and anything that that entails?

Lady said...

hey matt
just wanted to know what that speech piece was you mentioned before.
theo ne you thought i should do
get back ot me on it

Eric Michael Peterson said...

im not 100% on this, but doesnt the sm have to do addoption stuff no matter what? i mean like if the "real parents" want the baby or not?