This is another post inspired by the AAARTA conference I just attended. There was an excellent and thought-provoking discussion about surrogacy contracts that really got me thinking.
I should note at the outset that the participants to this discussion take the desirability of surrogacy as a given and so were focussed on what terms belong in a contract and what might happen the event the contract terms are breached. Since I’ve generally been engaged in the preliminary conversation about whether and/or under what conditions surrogacy should be allowed, I found this discussion fascinating.
There are an astonishing range of topics that might be covered in a surrogacy contract. Really, this shouldn’t be surprising. We’ve all come to accept, I think, that the behavior of a pregnant woman has many implications for the development of the fetus. Thus, it’s hardly news that surrogacy contracts might contain provisions saying that the surrogate won’t use drugs or alcohol.
But if you think about it, many women who are pregnant do far more than simply avoid drugs and alcohol. They may eat some foods (those high in folic acid, say) and avoid others (things like tuna or other fish that may have high levels of mercury). They may take special exercise classes or avoid particular types of exercise. They may take special birthing classes. They may listen to classical music.
Surely these are things that people entering into a surrogacy arrangement might wish to consider and discuss. If the intended parent or parents really care about whether the surrogate uses henna on her hair, it’s best to get that out in the open upfront. If the parties cannot agree on things like this, maybe they ought not to go forward. And if they can agree, then maybe these agreements end up in the contract.
Beyond this, there are critical questions about medical care and medical decision-making. What sort of pre-natal care will the surrogate receive? Who will be her doctor? What tests might be done? What if there are three embryos, either because three were transferred or because fewer than three were transferred but one or more divided on its own?
There’s an important baseline here that needs to be stressed: the woman who is pregnant has the absolute right to make decisions about her medical care. Thus the decision whether to selectively reduce the number of embryos is hers. No one can force her to do it or not to do it.
For this very reason, the parties to a surrogacy arrangement must discuss these sorts of questions in advance. It seems clear that the intended parent or parents and the surrogate will be better off if they share the same views about the propriety of abortion. And here, too, you can see that once the parties have the conversations and reach agreement, they might end up writing the agreements down, which is to say they might become part of the contract. (If the parties don’t agree on these things, I’d hope they would not go further with the arrangement.)
Now the idea that the contracts used in surrogacy might include all these sorts of provisions is interesting. Even more interesting, though, is the question of what happens if the provisions aren’t followed. What if the surrogate eats sushi or has a couple of glasses of wine in violation of the contract? Or what if she decides she’s willing to carry triplets when it had been agreed that she would not?
If these terms have been included in the contract, then you might be looking at questions of contract law: Has the surrogate breached the contract? Is the breach material? What are the remedies available to the intended parents?
I suspect that the simple consumption of forbidden foods is unlikely to be recognized as a breach. But what if there are (arguably) consequences from the consumption? And what about more significant deviations from the agreement?
In an extreme case, if there a breach you might think that the intended parents can call the deal off and refuse to take the child or children, but I think that’s wrong. The reason surrogacy works (from a legal perspective) is that the law recognizes the child, once born, as the child of the intended parents. That’s not because of the contract–the contract cannot assign parenthood, because that would be selling children. Instead, the law automatically recognizes the intended parents as parents by virtue of their intent at whatever the critical moment in time was. What this means is that the child is the child of the intended parents whether there is a breach of contract or not.
There’s more to say here, but I will stop for now. I’ll get to further questions about remedies for breach in my next post.