Last week I made my second attempt at a discussion on surrogacy and contracts. At that time I promised to go on to remedies, but in the meantime I’ve also been thinking about what I wrote and whether it requires a little further elaboration.
In my earlier post I wrote about how those who are intending parents might want to control many aspects of the surrogate’s life during the time the surrogate is pregnant–things ranging from what she does or does not eat to the sorts of prenatal care she receives to decisions about whether to have an abortion. It’s not hard for me to understand that this desire might exist. But I think I jumped to quickly from understanding that the desire exists to accepting that people might act on the desire.
It does seem to me that some of these things ought to be discussed and (ideally) agreed upon by surrogates and IPs. At the very least, some sort of match-maker ought to watch out for the really big areas where disagreement might spell disaster. So, for example, if the IPs are adamantly opposed to abortion, while the surrogate is not (or vice versa) it seems clear that you could be heading for trouble.
But even if you match people based on general views, it seems to me there is value in face-to-face discussion between IPs and surrogates where people contemplate at least some of the potentially hard situations they might face. And it makes sense to me that they might work through a plan on what they’d do if (fill in difficult circumstances) and write it down.
However, there are a whole range of issues (diet, exercise, hair dye) where I find myself doubting whether they parties really ought to try to agree on these things. As I said, I understand the IPs desire to control these things, but I’m convincing myself that they cannot hope to do this and so the honest thing is to tell them to just get over that need. If they cannot get over that need, then maybe surrogacy is not for them.
I reach this conclusion for two reasons. The first has to do with remedies–the long promised sequel to the earlier post: Terms about what the surrogate eats or how she exercises could never be enforced. No court will order a surrogate to eat particular foods or engage in particular forms of exercise. And if instead the IPs pursued an action after the surrogate had failed to comply with some term of the agreement, what remedy could they seek? The terms we’re talking about are so minor when compared with the overall agreement that a deviation from them wouldn’t void the whole agreement. And it would be nigh on impossible for the IPs to show any harm from the sorts of breaches we’re talking about. If the surrogate eats sushi when she agreed not to, can anyone prove that harm was done to the developing fetus? I very much doubt it.
My second reason is rooted in some of the comments raised earlier and in some conversations I’ve had around this. Attempting to exercise this sort of control over the surrogate is just flat out offensive to me. I do worry about potential exploitation of women who are or would be surrogates. Encouraging contractual provisions around things like diet, etc. seem to me to invite a kind of dominance that troubles me.
Now there is a fine line I’d like to draw here. I’ve suggested in the past that the key to successful surrogacy is the relationship between the IPs and the surrogate. If there’s a good relationship then maybe the IPs can say to the surrogate “we really wish you wouldn’t …..” or “if you would ……., we’d be grateful.” And maybe the surrogate would respect the request. That’s fine with me. I’m not against communication. I’m not against explaining what’s important to you and maybe even asking for it. It’s the idea that you can bind someone to these sorts of terms that bothers me.
One final side note: I think one reason some people opt for surrogacy in India might be that the surrogates there are much more clearly controlled, if not directly by the IPs then by those with whom the IPs contracted. The control over the surrogates, who live in regulated compounds, disturbs me as well.