Power Yet Again?

A friend and colleague posted an intriguing comment to my last post. (If you haven’t read it, you should. You’ll find it at the end of the post.) I’ve been thinking over his points this past weekend, and thought I’d engage with a few of them.

I gather one point is that a surrogate who breached a non-binding agreement might nevertheless be found liable for some sorts of reliance damages. I’m not sure I’d find that a problem. I generally think people ought to keep their promises and that we ought to rely on each other to do so. I certainly don’t think a commitment to be a surrogate should be made lightly. So the fact that there are consequences to bailing out seems fine to me. I’m thinking here of money, I suppose.

As to binding agreement, it’s an interesting thing about power once the process of surrogacy is under way. It might seem that the woman who is pregnant should hold all the cards. After all, she has exclusive possession of the fetus during the pregnancy. Her possession cannot be disturbed. And, as I noted before, she can choose to terminate the pregnancy. By contrast, the couple intending to be parents would seem to have little leverage at this point.

While this description of affairs would seem to comport with the general point outlined in the comment to the last post, it seems terribly flawed here. I’m wondering whether there is something specific to surrogacy that makes this seem like an inadequate analysis. The surrogate has two choices–continue the pregnancy or not. If she continues the pregnancy, she is bound to turn over the child. She might threaten breach, but it’s a hollow threat in a jurisdiction where surrogacy agreements are enforced. Her only alternative would be to get an abortion.

I think there is typically a power differential starting even before the pregnancy is underway. Surrogacy–particularly commercial surrogacy–is expensive. Thus, the people who choose to employ surrogates must be reasonable wealthy. By contrast very few wealthy women choose to be surrogates. (Chances are that those who do would do so as altruistic or compassionate surrogates. This would, I think, be a different case.) Indeed, the Newsweek story suggests that the money to be earned is part of the rationale for becoming a surrogate. And with surrogacy now available off-shore at bargain prices, there is some reason to believe that there is a plentiful supply of competitively priced surrogates. Thus, prospective surrogates are not in a position to insist on a particularly good bargain.