Surrogacy’s Hard Cases, I

I’ve written about surrogacy quite frequently in the past.  (Check the tag cloud to find earlier posts.) But I’m thinking about surrogacy again, perhaps coming at it from a different angle.    I began this yesterday, and you might want to read that first.  

Before returning to my theme I will start with a couple of points I should have made yesterday.   First, discussions of surrogacy often seem to be passionate.   There’s something about the practice that makes people respond viscerally.   This makes it hard to have a simple and reasoned discussion of surrogacy, but I think it’s important to try.    

Second, analyzing surrogacy is more important than you might think.   Surrogacy itself is hardly common but the questions one confronts with surrogacy have broader implications.  

For example, should we treat gestational surrogacy (where the pregnant woman is not genetically related to the fetus) differently than traditional surrogacy (where the pregnant woman is genetically related to the fetus)?   To decide this one has to decide the significance of the genetic connection.   That decision has implications in many other areas I’ve discussed on this blog.    I suppose what I mean to say is that if you value consistency and principle (and I do) then answers to some questions about parentage lead to answers to other questions.  

So with all that in mind, I press on.   What I tried to do yesterday is start with this question:  Is there any reason to say as a blanket statement that you cannot pay a woman to be pregnant?    This is where you should go back and read yesterday’s post to see how I conclude that there is not. 

Now if you’re going to start down this road of paid pregnancy, it seems to me you must foresee that there will inevitably be instances where the whole arrangement goes off the rails.   Indeed, if you look back in this blog you’ll see a number of instances where just this has happened.    So I think you need to consider how you are going to deal with these instances.   

As I see it, there are two main ways the surrogacy relationship can go wrong.   First, the pregnant woman can change her mind and decide that she’d like to keep the child.   Second, the intending parents can change their (or if there is only one, his or her) mind and decide they do not want the child.   The question is, what do you do in these cases? 

You can think of these as contract problems, of course, as the agreement between the surrogate and the intending parent(s) is in the nature of a contract.  This does suggest some easy answers in some cases.  Contract defenses should surely be available.  So, for example, if the intending parents  committed fraud, or of the agreement of the surrogate was obtained through duress, that probably provides a basis for the surrogate to refuse to go through with the deal.  

But the cases where there are contract defenses are not the truly hard cases.  The truly hard cases are those where there are not contract defenses and nonetheless, someone wants out of the agreement.   What to do then?  I’m inclined to think that if you cannot answer these questions, perhaps you shouldn’t allow surrogacy, because it seems to me inevitable that these problems will arise.  

I’m going to take the second of my hard cases first–the one where the intending parents decide they do not want the child after all.   I do this in part because, as I noted in an earlier post, this is apparently the more frequent of the two occurences.    

It seems clear to me that we should not make the intended parents raise the child.   That would very likely be terrible for the child.  But perhaps the parents should be liable for the costs of raising the child–the child that was created on their behalf.  I’m inclined to think that the liability should only last until someone else takes over care of the child–as is the case when a child is relinquished for adoption.   And I’m inclined to give the surrogate the first opportunity to raise the child.   Finally, it seems clear to me that the surrogate gets to keep the money paid by the intending parents.  

I’ll tackle the other hard case–the surrogate who changes her mind–tomorrow.   I think it is the harder of the two and a little more time for thought cannot hurt.

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7 responses to “Surrogacy’s Hard Cases, I

  1. Very logical solution.

  2. (I would agree only in the case of anonymously donated gametes, of course)

  3. As to financial responsibility (or liability), perhaps following rules similar to those used in marital dissolution would be appropriate. That is, a standard formula could be applied, based on the income of the intended parent(s), and effective through age 18 (or perhaps later if the child attends post-secondary education). And perhaps that financial responsibility should continue even if the child is later adopted. This would have the effect of making prospective intended parents think very carefully about the financial responsibility they are assuming, regardless of whether they go through with the transaction; I think that it would also reduce the number of cases where the intended parent(s) change their mind(s); and, finally, it would provide the surrogate parent with at least some financial assistance should she elect to raise the child, an event that is somewhat likely given the close relationship that most birth mothers have with their offspring, especially when that child has essentially been abandoned by it’s supposed parents before it is even born. My biggest concern with this concept is that I think that it might create the potential for a moral hazard for an adoptive parent in that a terminated contract could result in a financial incentive for a prospective adoptive parent of the relinquished child.

    • All true enough. But parents generally can agree to voluntary termination of parental rights and can seek to have a child placed for adoption. I would not preclude the intending parents from travelling that route. And if someone else adopts the child, then that person assumes the financial responsiblity.

  4. Well now that’s interesting. I agree with what Julie said I think. If the intended parents wish to call the whole thing off when the baby is born I suppose they could give the child up for adoption – that is of course if they are related to to the child. What would be terrible is if the woman carrying the child was just a gestational carrier but considered the mother because she gave birth and she decided she did not want to give the baby to its parents but did not want it herself and gave the baby up for adoption – picking parents that she felt were more appropriate. Like her best friend and her best friend’s husband for instance. That would be really bad.

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