Last week I put up a post about surrogacy and contracts. It was not one of my best efforts–I knew just enough to be dangerously confusing. I’m going to try again and though I’ve linked to the earlier post, I’m not sure it’s really helpful to actually read the thing.
The starting point for this consideration is the approval of surrogacy in a general sort of way. If you think surrogacy is morally wrong and should never be approved, then the rest of this discussion won’t have any relevance to you.
But let’s suppose that you think a woman is capable of agreeing to be a surrogate for another person or people and that you think women should be allowed to do this. (I do think this, as you will know if you have been reading the blog. For extensive discussion of a wide range of issues, try the tag “surrogacy.”)
It seems quite reasonable to me that the surrogate and the person or people for whom she is acting will want to have a written agreement. At the very least, there must be discussion of a whole range of issues before they proceed and if they have the discussion and reach agreement, then I think it makes sense to write it all down. (Obviously if they don’t reach agreement they shouldn’t go forward.)
It’s worth taking a moment to think about the sorts of things that they surrogate and the intended parents ought to consider. Keep in mind that the intended parent(s) are likely to be reasonably well educated and wealthy.
For people from that segment of our culture, pregnancy is typically a highly-managed endeavor. There are foods to eat (those with folic acid, maybe) and not eat (those that might have high levels of mercury, perhaps), types of exercise to get and types not to get, restrictions on activities that might be harmful to the developing embryo (dyeing hair, tattoos, etc) and activities that might be beneficial. Indeed, there’s a whole industry out there aimed at enhancing the prospects of a child by managing pregnancy.
It seems to me quite predictable that some–maybe even most–IPs will want to ensure that the surrogate does all the right things, whatever they think the right things are. If this is so then surely they should talk about this with the surrogate.
There’s also a separate and critical set of issues around medical care. What will the prenatal medical care be? Who will provide it? What tests will be done? And what actions may be taken as a result of the outcome of the tests? These are hugely important questions that it seems to me MUST be discussed. Perhaps the largest questions are those around the circumstances under which the surrogate might elect to have an abortion or might selectively reduce the number of embryos she is carrying. And here again, it seems to me clear that the parties contemplating surrogacy ought to discuss these issues, they ought to be sure they agree about how they will be handled and, assuming they agree, they ought to write the agreement down. That written agreement is essentially a contract.
I do see that there can be objections voiced to the terms of this contract. Certainly the terms of the contract are unlike those of most commercial contracts. It’s anywhere from curious to degrading to contemplate contract terms like “you will eat spinach” to “you will not stay up past midnight.” (These are not real contract terms and I suspect they are extreme, but you get the idea.) But it seems to me that if I say a woman has a right to agree to be a surrogate then it is hard for me to say she cannot agree to terms like these.
Perhaps the more important question is the force to be given the agreement. It seems to me at the very least, it is a personal promise. I’m inclined to believe people should not discard their promises lightly. So I suppose the first thing I’d say is there is a moral obligation to take the commitments you make seriously.
Does it have meaning beyond that? If you fail to comply with the terms of the agreement does it amount to a legal breach of contract and, if so, what follows from that?
For the moment I will go this far: Legal parentage cannot be reassigned as a remedy for breach of contract. There may be a variety of remedies available, but this cannot be one of them. And that is because it is not the contract that determines legal parentage in the first place. Legal parentage is not assigned by private agreement (that’s selling children) but rather by the operation of legal rules that are external to the agreement. So whatever it is that makes the IPs legal parents (if legal parents they be), it cannot be changed by compliance/non-compliance with the contract.
This seems like a sounder beginning to me. Next time–on to remedies!