Surrogacy Contracts, Abortion, and Peonage

A tragic case in Texas has given me an opportunity to rethink the relationship between surrogacy contracts, abortion, and peonage.

In short, a couple from California signed a surrogacy contract with a woman from Alaska. A fertilized embryo was implanted in the Alaska woman. At the 20-week mark, the child was diagnosed with a congenital heart disease that would require multiple surgeries to survive. Pursuant to the surrogacy contract, the couple ordered the woman carrying their child to terminate the pregnancy. The woman refused and she traveled to Texas where the abortion would have been illegal. The Texas Attorney General intervened, and sought a TRO to ensure the child would receive medical care. The child has now been born. The couple from California gave him one name and the woman from Alaska gave him another name. Now there will be a contest for custody. Presumably this dispute will be adjudicated by the Texas courts. All the while, the baby will face weeks of risky surgeries.

We should all pray for the baby on many fronts. He faces extremely dangerous procedures ahead of him. But what comes after the surgery will be a challenging life for this newborn. Who will his parents be? Pro-choice advocates often argue that abortion is favored to prevent the biological parents from suffering the grief of losing a child in-utero or shortly after birth. It is better, advocates argue, to terminate the pregnancy earlier on to limit the pain the parents will feel as attachment grows. In this case, the California couple couldn’t terminate the pregnancy because another person was carrying their child. So we have the rare counterfactual where the couple made the choice to terminate the pregnancy, but the child was carried to term. The biological parents are now facing a very different type of grief, one that will likely endure during the child’s life and beyond. And should the child survive, he will one day face a realization that his biological parents would have preferred him to be dead.

Beyond the moral issue, there is a constitutional question presented. The surrogacy contract the woman from Alaska signed arguably requires her to undergo an abortion if the California couple demanded it. She told Megyn Kelly she felt “trapped” by the surrogacy contract.

In any other context, a contract that forces a woman to undergo a surgical procedure against her will would be void against public policy. But the entire nature of surrogacy treats the woman’s body as a commodity that can be controlled.

There is a common refrain that bans on abortion violate the Thirteenth Amendment. I think these arguments are risible. The state has an absolute compelling interest to preserve life, and to prevent the destruction of life. Moreover, laws banning abortion were adopted contemporaneously with the adoption of the Reconstruction Amendments. And even the least restrictive means to preserve the life is to ban the abortion.

The surrogacy contracts resemble another vestige from Reconstruction: peonage contracts. After slavery was abolished, many freedmen would sign “peonage” contracts, in which they were forced to provide service to pay off a debate. This was slavery by other means. The Supreme Court declared such peonage contracts to violate the Thirteenth Amendment in Bailey v. Alabama.

If in fact a surrogacy contract forces a woman to undergo an abortion against her will, I think such a contract would run afoul of the Thirteenth Amendment. Indeed, the entire notion of surrogacy is at odds with the Thirteenth Amendment.

I found an article published 25 years ago from a progressive author arguing that surrogacy contracts are exploitative of poor women and were a form of peonage. This argument hasn’t gained much traction, I think, because wealthy, elite women routinely seek to use surrogacy, especially later in their lives, to have children. So this practice must be maintained.

I don’t think this problem is isolated to the left. Conservatives need to reckon with both IVF and surrogacy.

There are two overlapping themes that diverge in important ways. First, most conservatives are pro-family and favor policies that let more parents have more children. Second, most conservative are pro-life and favor policies that preserve life from conception. In-vitro fertilization and surrogacy creates a tension between these two goals. Generally with IVF, many embryos are fertilized, and only some of them are implanted. The process will invariably require the destruction of the remaining fertilized embryos. Moreover, when the embryo is implanted in a surrogate, there is the risk that the person carrying the pregnancy may bond with the child and want to keep it. Or, as is the case with the woman from Alaska, the couple that contributed the fertilized embryo want to terminate their own child halfway through the pregnancy. The state is then responsible for physically separating a new-born child from the woman that carried him for nine months.

I don’t think most pro-life people have fully grappled with the implications of both IVF and surrogacy.