Surrogacy, Contracts and Remedies for Breach

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.

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13 responses to “Surrogacy, Contracts and Remedies for Breach

  1. I am very disturbed that a group of lawyers think it legally acceptable to create contracts that state what a pregnant woman may or may not eat. To me this is a violation of bodily integrity. It also sets a dangerous precedent that could lead to a violation of the rights of all pregnant women.
    A pregnant woman is a fully autonomous person, not just a baby carrier.
    A surrogate and her clients should surely discuss all these things, and draw it up in a statement of mutual goals, but this statement should have no legal import whatsoever.

    • I share your concern about the autonomy of the pregnant woman. As with the other provisions of the contract, I don’t think any court would ever specifically enforce these provisions.

      But on the flip side, pregnant women are competent to make agreements about what they will and will not do. They could agree to take a new job that might require them to move. No one could make them do that, but it’s in their power to agree. Just like the rest of us, they can agree to give up various freedoms as part of a deal that suits them. And those agreements can be in writing.

      So what happens if they don’t do what they agreed to do? If you agree to move for a job and don’t move you are in breach. The question is what is the remedy.

  2. I don’t understand Julie, you write that a court would be unlikely to enforce those provisions but that “you are in breach.” which is it?

    • Sorry–I was lapsing into unclear jargon, I fear. Sometimes court’s will grant specific performance. Thus, if I promise to sell you a house and then renege, the court will actually enforce the promise–it will make me sell you the house. But that’s relatively rare. Generally if I fail to perform a contract you will not be able to get a court to actually enforce the performance of the contract. It’s much more likely you’ll be able to get a court to say that I breached my obligation and am therefore liable to you for some form of damages. So for example, if I said I would hire you and then didn’t, the court won’t enforce the contract (by which I mean the court will not make me actually hire you) but the court may find that I have breached the contract and award you some form of damages–which generally means money.

      What I meant to suggest here is that a court would be very unlikely to force the surrogate to do or to not do something. It might, however, decide that the surrogate had breached the contract and would then go on to consider whether the breach was such as to merit damages. I’ll have more to say about this when I write again about damages, but basically I cannot imagine there would be damages awarded in the event the surrogate had eaten a prohibited food. The breach isn’t severe enough and it’s hard to show any harm.

  3. here is a very sticky situation:
    What if the clients (intended parents) decide that they’ve changed their minds, and they don’t want the baby. Perhaps they’ve discovered that it has a severe disability, or perhaps for another reason. They request the surrogate to abort and she refuses.
    There are two questions- the financial remuneration, perhaps a contract could resolve that question.
    But as to the question of parenthood, I would have to say the intended parents are still responsible in my opinion, like any other genetically related father.

    • Sticky indeed. Let’s make it easy for a moment and assume that everything happens in a state with fairly clear law about surrogacy, like California. Then the IPs are the parents no matter what. Their status is conferred by virtue of having set the whole thing in motion with the intention of being parents. That they later change their minds matters not. At the same time, the surrogate has an absolute right to decide to abort or not. The IPs cannot force her to do or not do that.

      Obviously this puts IPs in a position of disadvantage as compared to a couple with an ordinary pregnancy. They do not have the control of the pregnancy they would were one of them the pregnant person. (Of course, even within the couple there can be disagreement and the pregnant woman has the authority to make decisions in that event.) It’s a risk that oughtto be carefully explained to anyone contemplating using a surrogate.

  4. If a poor mother is a parent of a child, its their child. Period.

    I don’t know anything about surrogacy, but from what I have read, it seems very similar to adoption, which remains basically a horrid, barbaric situation in the United States, unlike the rest of the developed world, which no longer does this.. poor women and families generally get to keep their children. Here in the US a system exists that is completely invisible to many people..

    Look at how a broker will pay the poor wman’s hospital bill, – ONLY if they SELL their children – because if they don’t, they get hit with a $10,000 hospital bill they will be paying for 20 years at their wages..

    Notice how the proposed healthcare insurance covers the hospitals costs.. around 65% – but the poor mother will still have to pay the rest..

    In most of those OTHER countries medical care is free REGARDLESS of whether a young mother decides to keep her child, or not.

    All across America (and America seems to be the LAST country on EARTH where this is still happening) there are literally millions of women who were forced to give up their children. Thats what they feel. Thats what they KNOW.

    Was it so that some businessperson or rich lawyer could make a fat commission on their child?

    They are crying.

    That’s what this is all about, money. Easy money. America exports many of her children, American couples can’t afford to “buy” them. But rich European or Australian couples can. They come here.

    Lots of right wing churches are supported by adoption brokerage and they have a vested interest in keeping women shamed and financially marginalized so that they can continue to make “their” $50,000 per child they sell. Some adoptions are positive things, but the system is so corrupt that people don’t even recognize a shameful situation when they see one.

    The facts are clear.. don’t ignore them.

    • We do not allow the father to make contracts with the mother about what she can or cannot do with her body while she is pregnant. Why should we allow couples considering surrogacy to make contracts with the surrogate mother about what she can or cannot do with her body while she is pregnant? I agree with ki sarita. These kinds of contracts are a violation of the surrogate’s right to bodily integrity, regardless of how they will be enforced by courts (by force, or through threats of penalties).

      • I’m coming back to this topic momentarily because I fear this post was somewhat muddled. But I think people can make agreements about these sorts of things–we make agreements about things we cannot be forced to do all the time. What the agreement is worth–what legal meaning it might have–those are other questions. Important ones, to be sure. If a woman can agree to be a surrogate (and I think she can), then shouldn’t she also be able to agree to details of the arrangment?

        More to come very soon–I promise.

  5. I don’t believe that’s correct. It may have been at one time, but that is not up to day.
    First of all, at least in my state, pregnancy coverage is highly accessible to low and no income women. (Actually it’s much easier for the indigent than for the middle class).
    Secondly, the adoption propaganda doesn’t kick in at the hospital-bill stage. And the hospital bill is the least of concerns. Raising a kid over the long run is more expensive than a hospital.
    Third, there is actually a shortage of babies available for adoption, which is why so many people choose overseas adoptions.

  6. I mean Americans going abroad to Asia, Russia, Latin America to adopt.

  7. I have a question. If you are a gestational surrogate who enters into a contract agreeing to try x number of times to get pregnant for a couple but then after one try you see things about them you don’t like and you want to back out…can you? According to the contract it’s considered a breach but I think the 13th amendment would kinda over-rule the contract. What do you think?

    • I am not an expert on this topic but it seems to me that no one could force the surrogate to go forward with the contractual obligation. It does seem to me it is possible that she could have to pay money damages–it might depend on how payments were structured and what the contract said, perhaps on what she had already recieved. But even that might be unlikely because I think the way it is often set up is that payments are made in installments. Ultimately I share your hunch about the answer.

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