Surrogacy Disaster in the News
Before addressing the legal and moral complexities of this particular situation, I must first comment on how extraordinarily rare these types of surrogacy disasters are. I have been practicing assisted reproduction law for almost 20 years and have never had a situation in my practice that has come even close to being this messy; nor have any of my colleagues in the Academy of California Family Formation Lawyers run into this big a breakdown of the surrogacy process. Thankfully, embryology has advanced to a point where the physicians engaging in IVF can detect many fetal anomalies prior to implanting an embryo in a womb, so heartache like this often can be avoided. And when abortion or selective reduction decisions need to be made in the context of surrogacy arrangements, my experience is that the intended parents and the surrogates usually are able to cooperate and support each other through whatever difficult decisions face them. As I told one set of worried clients, who emailed me after news of this current mess broke, the good news is that these situations are so rare that you hear about them on CNN.
That said, it is important to understand the legal landscape for making abortion decisions in the context of surrogacy.
In states where surrogacy is legal -- and even in states where surrogacy contracts are enforceable -- there is a limit to what aspects of a contract will be "specifically enforced." A bit of Contract Law 101: even where a contract is enforceable, the type of enforcement varies. Some things are appropriate for "specific enforcement" -- which means that you can hold the people involved to actually following through on their contractual obligations -- and other things are not. The example most commonly given in law schools for the types of contracts that generally are NOT specifically enforceable are contracts for specialized services; my first year contracts teacher taught us that even if you have an enforceable contract with an opera company to put on Aida, if the lead diva refuses to perform you simply can't make her sing. This does not mean that you don't have an enforceable contract, nor does it mean that you have no way to enforce the contract -- but your method of enforcement is limited to seeking monetary damages for the breach (for example, compensation for lost ticket sales and for rental of the performance hall, as well as for damage to professional reputation, etc) -- you cannot stand the diva up in front of the crowd and make her perform if she chooses not to.
It is unclear to many of us practicing assisted reproduction law in states like California -- where gestational surrogacy is legal and gestational surrogacy contracts are enforceable -- exactly which parts of our surrogacy contracts are subject to specific enforcement and which are not. Our statutes and case law make clear that the parts of the contracts that specify who the parents are ARE specifically enforceable -- a surrogate who has entered into an enforceable Gestational Surrogacy Agreement cannot keep the baby, nor can the intended parents choose to walk away. But the parts of surrogacy contracts that address medical care for the surrogate -- what tests she will undergo while the baby is in utero, and certainly whether or not she will abort if there is a fetal anomaly -- are far less likely to be subject to specific enforcement. To put it bluntly, no woman is going to be forced to get an abortion against her will -- not in Connecticut, not in Michigan, and not in California. (For a more legal discussion of this topic, see my article "Surrogacy and a Pregnant Woman's Constitutional Right to Medical and Procreative Choice," presented at an ABA meeting on assisted reproduction law in October, 2011.) Instead, if there is a breach that leads to financial damage to the non-breaching party, that party is likely going to be able to sue for monetary damages -- but nothing more.
This is the reason that it is so critically important that (a) parties entering into surrogacy arrangements take the time to do diligence prior to an embryo being implanted, to make sure that the surrogate and the intended parents are 100% on the same page about the circumstances under which they will or will not abort a baby, and whose choice it will be; and (b) surrogacy contracts include Alternative Dispute Resolution provisions that force the parties to engage in meaningful mediation or other therapeutic interventions in a sincere attempt to resolve conflicts before they end up on CNN.
Situations like the one involving Baby S, as the infant is being called, are heartbreaking. We all do our best to avoid them. And when they happen, we need to provide thoughtful support to all involved and learn everything we can about how they came to pass, so we can try to prevent more of them from happening in the future.