Some More Thoughts About Surrogacy and Abortion

My post yesterday on surrogacy and abortion has generated many responses, as I had suspected. Surrogacy is one of those issues that conservatives simply don’t want to talk about. It is often heart-wrenching when couples are not able to have children, and IVF and surrogacy are viewed as miracles to let these couples have children. To raise any moral or legal objections to this practice is sometimes seen as a third-rail, even in Republican pro-life circles. And on the left, how many of the women who wore bonnets from the Handmaid’s Tale to protest Justice Barrett hired poor women in Eastern Europe to carry their children? This is an issue that needs to be discussed more on both sides of the spectrum.

Here, I’d like to offer a few more thoughts.

To start, the terminology is important. In my earlier post, I used the phrase “biological parents” to refer to the couple that established the surrogacy contract, and the “surrogate mother” to refer to the woman that carries the child to term. I don’t think these terms are precise enough.

Surrogacy can take many different forms. In some cases, the fertilized embryo includes biological material from both the male and female who establish the surrogacy contract. In other cases, the fertilized embryo includes the biological material from one member of the surrogacy contract (the male or the female). And in rarer cases, the fertilized embryo consists of material from a male and female donor, and includes no biological material from the couple that established the surrogacy contract. And in super-rare cases, there are three people who contribute biological materials. I’m not sure what the right terminology is, but “biological parents” is not always accurate.

I also don’t like the phrase “surrogate mother” as that presumes the woman’s only relationship with the child is the contract. In some cases, the woman carrying the child to term had her own egg fertilized, so she does have a biological connection to the child, even if the surrogacy contract purports to to nullify all parental rights.

If we want to be legalistic, perhaps we can use the language of contract law: the woman that performs the labor (literally) by carrying the child to term is the contractor, and the party/parties that receives the benefit of the contract is the contractee(s). Still, I find the entire commercialization of child-rearing to be unseemly, so this terminology is not ideal.

Maybe descriptive terminology is better. The woman carrying the child to term is, quite literally, the birth mother. Once the embryo is implanted, that person is the only person who can let the child be born. That role cannot be transferred to another person. To use the lingo, the contractual duties cannot be assigned to a third party. If another party/parties to the contract has a biological connection to the child, I would use the phrase biological parent(s). If the other party to the contract has no biological connection to the donor (both the egg and sperm were donated), then I would use the phrase contractual parent(s).

For starters, I think there is a strong argument that all surrogacy contracts violate public policy. I am not aware of any other context where courts will enforce a contract that requires a person to perform physical labor. The usual remedy when a party breaches a contract is damages. In some cases, specific performance is allowed, but that is usually akin to producing some fungible widget. Personal services are not going to be enforced. But surrogacy is just that. The biological or contractual parents do not want some form of monetary damages in case of breach. They want the birth mother to carry the child to term (unless they want the birth mother to have an abortion). This sort of contract would seem to flunk the most basic principles of specific performance.

Let’s assume that the surrogacy contracts, in general, are enforceable. The far more problematic situation occurs where the biological or contractual parents demand that the birth mother have an abortion. Here, I think the distinction between biological and contractual parents matters. Contractual parents have no biological claim to the child. Their right is only contractual. A biological parent as least has some biological claim to the child, and thus a constitutional interest in directing the upbringing of the child.

What should happen if a contractual parent seeks to enforce an “abortion” clause in a surrogacy contract? I think a court should declare the entire surrogacy contract to be null and void, whether as a violation of public policy or a violation of the Thirteenth Amendment. The contractual parents would then have no legal claim to the child. All relationship would be severed. Is that outcome really so harsh? After all, they wanted to have the child terminated. What continuous interest could they possibly claim? Parents, and I use that term only in the legal sense, that seek to abort their child have demonstrated that they are no longer serving the best interests of the child. This is not the routine case where two parents disagree about the proper course of treatment for a child’s care. Here, both parents simply want to end the child’s life to avoid the grief the parents might suffer. Or perhaps they want to euthanize the child so the child will not feel any pain. A child is not some sort of item that can be ordered from a boutique and returned if the couple no longer wants it.

I think a state could even establish a statutory presumption that contractual parents who seek to enforce an abortion clause for a surrogate contract are by definition unfit parents. And in a sense, because these parents have no biological connection to the child, they have no constitutional right to direct the child’s upbringing. At that point, a mechanism should be established to award temporary custody of the child to either the birth mother or to a guardian ad litem. This temporary custody would last until the child is born. The state should also mandate that hospitals perform all necessary procedures to ensure the child can be sustained through delivery. After delivery, a more fulsome procedure could be established to ensure proper custody is awarded for the child, either to the birth mother or through the foster system.

I think the analysis would be different when one of the contractees, for lack of better words, is a biological parent. Terminating parental rights is a serious affair, even when that parent seeks to terminate their child being carried by another person. If biological parents seek to have the birth mother perform an abortion, the birth mother or the state could petition a court to temporarily award custody to the birth mother or to a guardian ad litem until the child is born. After delivery, a court could adjudicate whether the biological parents or the birth mother has the stronger claim for custody. Presumably, once the child is born, the biological parents would no longer seek to euthanize the child. Again, I think the legislature could create a statutory presumption that biological parents who seek to terminate their own child are ipso facto unfit parents, but I think this presumption could be rebuttable.

There is another situation that is worth discussing. Surrogacy contracts have abortion clauses in both directions: contractual parents can force the birth mother to have an abortion and contractual parents can prevent the birth mother from having an abortion.  In the latter case, could a court issue an order restraining the birth mother from having the abortion as a means of enforcing the surrogacy contract? Again, I think these sorts of contracts violate public policy, so unenforceable. Alternatively, does a biological parent have a right to protect their own child? Imagine that a husband and wife contributed a fertilized embryo, which was implanted in a surrogate. In the conventional sense, the surrogate would be seeking to abort another couple’s child. I think a court could block the abortion in that context, apart from the surrogacy contract. In light of Dobbs, states can prohibit the abortion altogether, so the issue is somewhat moot. Of course, in blue states that permit abortion until the moment of birth, it is unlikely the legislature or court would bat an eye if a birth mother wants to terminate her pregnancy. And with mifepristone being sent through the mail like Tic Tacs, not much can be done to stop the surrogate mother from acting alone.

There are many issues here. I’m sure I’ll write more on the topic in due course.