There is a fascinating case in Canada on the legal status of babies carried by surrogates. We have seen various rulings in surrogate cases, including surrogates awarded custody and surrogates fighting for such rights. The couple who (upon learning that the baby carried by their surrogate had Down’s Syndrome) wanted to abort the baby. However, the surrogate refused and wanted to complete the pregnancy.
Under the surrogate agreement, the parents are not liable for the child if the surrogate proceeds to give birth against their wishes. However, there is a general policy in many countries that biological parents are responsible for child support.
Bioethicists like Juliet Guichon objected to any court honoring this contract, stating “Should the rules of commerce apply to the creation of children? No, because children get hurt. It’s kind of like stopping the production line: ‘Oh, oh, there’s a flaw.’ It makes sense in a production scenario, but in reproduction it’s a lot more problematic.”
What do you think?
Update: The surrogate eventually relented to the abortion.
Source: Care 2
Jonathan Turley
There’s two different statutory procedures in place for surrogacy in Florida, so what would happen is actually pretty straightforward in my state.
For a “gestational surrogacy”, the biological parents have to be married. They also have to agree in the contract that the surrogate is the “sole source of consent with respect to clinical intervention and management of the pregnancy.” And that they will accept custody of the child regardless of any impairments.
For a “preplanned adoption” (if the surrogate was also the biological mother), the contract can’t ever force the surrogate to have an abortion. The mother could decide to carry the Down’s Syndrome baby to term and force the two adoptive parents to take custody. She could alternatively void the contract within 7 days of birth and force the biological father to provide child support (even if he was also the intended father of the contract she just voided).
See … that’s what I mean … I’m a 100% Scot and thus descended from a whole bunch of clans (including the one that had to change its name because its members had been horse thieves and the new generation wanted to improve their image) … not one king or queen in the motley crew. Come on … what are the odds!?
I would even settle for Alexander III of Scotland. He died when his horse was blown over a cliff.
Blouise My 100% Scottish brother in law is impressed. He is descended from the clans of Western Scotland while his wife is descended from Margaret of Scotland. I did not know I was even a bit Scottish when i started this work.
AY, “in the US see what happened….oh that is another thread…”
I was gonna go there but you beat me to it …
AY,
I can make your avatar dance by running the cursor over it … a dancing elf perks up the morning.
Willie was not too well liked amongst his family if I seem to recall….He couldn’t get his proper inheritance and made promises to folks to help conquer the Isle of Brittany…..a Roman possession….I am still wondering how many Empires existed just within the boundary’s of Italy….or even France…In Spain we still have two…..that are recognized….in the US see what happened….oh that is another thread…
Swarthmore mom
1, October 9, 2010 at 11:39 am
A Y Interesting you should mention William the Conqueror. I have been doing genealogy work, and I am a descendant of William the Conqueror on my father’s side. No one is impressed.
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I am impressed. I can’t find anyone famous or infamous in my genealogy work. What are the chances that down through thousands of years and thousands of ancestors all were mediocre and common?!
AY,
Are you suggesting a mace, a sword, and a lance? Well that would certainly bring the inheritance issue to a head.
A Y Interesting you should mention William the Conqueror. I have been doing genealogy work, and I am a descendant of William the Conqueror on my father’s side. No one is impressed.
SwM,
Thanks for the update.
The questions raised by this thread still remain.
Blouise,
Also to have an automatic right of inheritance the child must be a minor….In the US there is not automatic rights of inheritance if a will is in place and they are properly excluded…then not a chance…..or you can do like a few families I know and provide for them a small amount and put an antiterrorim clause in it…
Blouise,
It is kinda of funny you ask that this is a question that is ripe in a number of Jurisdiction and courts have been reThe rights of inheritance….well the Hunt family of Texas can better answer that….or they can take the way of William the Conqueror in 1066 and take what you expected by inheritance….even being a bastard in more than just the biological term…..Some events can change the world and make History forever more interesting….but then again the Normans weren’t just around for WWII…..
http://www.nationalpost.com/news/Couple+urged+surrogate+abort+fetus+defect/3628756/story.html She ended up having the abortion because she already had two children to take care of.
AY,
Now my question for you, my dear AY … will the child upon reaching maturity, have the right to sue the biological parents for inheritance purposes?
Since the mother is giving birth against the wishes of the parents which is covered in the contract, she’ll have to sue for child support. It will probably be tied up in court for years.
Here in New Jersey this is how this situation is looked at:
“Your rights in the event of a Prenatal Misdiagnosis (Wrongful Birth)
In order to recover, parents must prove that a medical providers negligence prevented them from learning that there was an increased risk that the fetus had a significant birth defect or genetic condition. They must also establish that they would likely have terminated the pregnancy had they been advised of the problem. In doing so, they are not in any way calling into question their love and devotion to their child that relationship has already been established and will continue forever. Instead, they are merely acknowledging that if told of the defect or disease during the pregnancy, they would have likely chosen not to undertake the financial and emotional hardships involved in parenting a severely disabled child with a lifelong disability. Because the child would not likely have been born if the medical provider was not negligent, these claims are often referred to as wrongful birth claims.”
http://www.njmedlaw.com/down-syndrome.html?gclid=CPS7zvaDxqQCFWJo5QodKCEFjA
The question asked is whether or not the act of being a biological “parent” (or “parents”) creates a financial obligation for financial support to the child until adulthood.
If this were the case, sperm donors would always be financially obligated to support their children – whether they were anonymous donors or not. This would even be true if the biological or surrogate mother waived claims of support in advance, as was the case here.
If courts mandate financial support, would any males donate sperm knowing that such an act created all the financial obligations of fatherhood? Very doubtful. Such an approach would dramatically lower the quality and availability of sperm donation to wanting mothers, and raise the price.
If government sets aside this contract with the surrogate and creates financial obligations where they have been voluntarily waived this will severely discourage creation of children through surrogacy or sperm donation.
This from purely a contractual stand point creates certain rights and responsibilities in fulfilling the contract. Since this is a personal contract and only one person can fulfill the contract then it creates unattenuated consequences which have to be dealt with in a timely manner.
Since they are aware of the issues with the child and the “Parents” have rejected the contract under the rights and remedy’s under of the contract then the mother is obligated to cease work….yes right…under these circumstances….which then brings us to if she delivers…will the donors be obligated for support of the child….under normal circumstances this answer would be yes…here…since the contract has been repudiated is she proceeding at her own peril…This area is murky and I am unsure about the Canadian laws in this regards…but in three states I know…the obligor of the contract would be stuck with support….
Then we have the other side where the parents could take the child and raise it….the way that they wanted….These are hard cases and hard decisions….
Initially I would say no support….but…after all this is a personal service contract and if it is not upheld then they will be stuck with support….This does undermine the credibility of these types of contracts and we are dealing with human lives….oh what a web we weave for ourselves playing god….
“Under the surrogate agreement, the parents are not liable for the child if the surrogate proceeds to give birth against their wishes. However, there is a general policy in many countries that biological parents are responsible for child support.”
I wonder which side will prevail?
I am pro- choice, and I don’t think anyone should be forced to have an abortion.