Surrogacy contracts should not be enforced
Washington Examiner
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When you contract for a blue all-wheel drive Ford Flex and the dealership delivers a white front-wheel drive SUV, you can take the dealer to court and force him to deliver the agreed upon vehicle or pay damages.
But what happens when a same-sex couple contracts for a healthy baby boy, but tests reveal the baby has Down syndrome or is a girl? Can the surrogate mother be forced to terminate the pregnancy or pay damages for failing to deliver? What if the couple change their minds and decide they don’t want any baby. Can they force the mother to abort even if she wants to adopt?
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These are not hypothetical questions but real situations that are common in the growing $6 billion surrogacy industry. They are the types of questions inevitable when human life is turned into a commodity, which is what commercial surrogacy does. They are why Congress should ban the enforcement of some items in surrogacy contracts nationwide.
Recently, a surrogate mother in Sacramento, California, contracted with a gay couple to deliver a baby boy. Then doctors discovered she had breast cancer. The mother wanted to deliver the baby early at 25 weeks so she could begin chemo treatment to save her life.
But this was not what the couple had contracted for. They had paid for a full-term baby and did not wish to accept a premature baby. So they asked the mother to abort the baby, a common clause in California surrogacy contracts. California courts do not have the power to force surrogate mothers to abort their babies, but they can find the mothers in violation of agreements, which can lead to loss of payments and medical insurance. The couple threatened legal action when the mother refused to abort.
When she offered to adopt the child, the couple again refused, because they didn’t want their DNA “out there.” The mother went ahead and had the child delivered at 25 weeks, at which point under California law, the couple automatically became the legal parents of the child. The mother had no rights. The couple reportedly refused life-saving care for the premature infant, who then died. The baby was cremated at the couple’s request.
Other mothers have fled California. One had a great relationship with her contracting couple until doctors discovered the child had a cleft lip and palate. The contracting couple asked her to abort the baby but she refused. The couple then offered the mother an extra $10,000 to abort the baby, but she again refused. Finally the mother fled to Michigan, a state where surrogacy contracts are not enforced, and she had the baby, which was adopted by another couple.
Commercial surrogacy contracts are inherently dehumanizing. In addition to often containing clauses about when a child should be aborted for not meeting contractually bargained for expectations, they also often direct surrogate mothers on how to live, including dietary, travel, and even sexual restrictions. Failure to behave as the contract directs can lead to financial penalties.
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If a woman wants to serve as a surrogate for a couple she must be free to do so. There need be no criminalization of surrogacy. But when a state enforces contracts on the bodies of women, that is unnatural and inhumane and should not be condoned.
Surrogacy is a multi-billion dollar business. Congress has the power to regulate it, and should ensure that courts do not participate in its abuses.