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01/28/2016

My Child, Your Womb

Gestational surrogacy contracts have been in the
news again recently as
a gestational surrogate reports
that the intended father, having discovered that she is expecting triplets, is
demanding that she undergo selective reduction to abort one of the fetuses.  Situations such as these, while often not reported,
are not necessarily uncommon.  In 2013, a
gestational carrier was
offered $10,000 to abort
when a second trimester ultrasound discovered congenital heart and brain
abnormalities.  Despite a
well-established Constitutional right to privacy that includes a pregnant
woman’s right to procure – or refuse – an abortion,
surrogacy contracts
routinely include provisions that not only prohibit a surrogate from having an
abortion unless there is a medical need, but also give the intended parents sole
discretion to determine whether the surrogate should abort where there is
evidence of a physical abnormality or other issue.  Such provisions have not been tested in court,
but would almost certainly be unenforceable based on the surrogate’s Constitutionally-protected
right to reproductive autonomy.


In India, where there is an estimated $400 million
surrogate tourism industry, women agree to be surrogates in exchange for
$5,000-7,000, which is far more than they could make otherwise.  In many clinics, surrogates live in
dormitories for the duration of the pregnancy and their food and medical care
is provided by the clinic.  There are
also reports that some clinics have policies against pregnancies of 3 or more fetuses
– meaning that
selective reduction may occur as
a matter of course
to reduce the number of fetuses
to 2 or 1.  If this is in fact happening,
are the surrogates (or even the intended parents) aware of what is
happening?  Are they given a voice in the
medical care and treatments they receive? 
Or are the decisions made by the intended parents or the clinic, and
simply imposed on the surrogate?


Surrogacy, as with other assisted reproductive
techniques, has been promoted in the name of reproductive autonomy – the right
and ability to have more options and exert more control over reproduction.
  But in cases such as these, where surrogates are
pressured legally, financially and socially to have an abortion, whose
reproductive autonomy are we honoring?
 
While it may be the child of the intended parents, it is the uterus of
the surrogate.
  The intended parents have
an interest in the healthy development and birth of their child, which can be
affected by congenital abnormalities, surrogate behavior, or the presence of
multiples.
  The surrogate has an interest
in her own bodily integrity, her own health, and the treatments or procedures
performed on her, even in connection with the gestation of another’s child.
  Where these interests conflict, whose rights
are stronger: the intended parents of the child, or the woman carrying it?
 


It seems unconscionable that a woman could be forced
to undergo an abortion based on enforcement of a contract.
  It is equally disturbing to think that an
intended parent would be prevented from objecting to an abortion of his or her
child because the surrogate was making the decision to abort.
  While both of these decisions in the context
of a commercial surrogacy arrangement may be considered a breach of contract,
and therefore may have monetary damages, what is left in the aftermath?
  A parent whose unborn child was aborted
without the parent’s permission?
  A
surrogate who has been abandoned with a newborn she never intended to keep?
  These consequences are far weightier than
could be compensated for by money.

 

The problem with blending the rights of reproductive
autonomy is trying to separate them again when there is a conflict.  A surrogate will always have the right to determine
what happens to her body, which includes the right to have or refuse an
abortion, even if the child belongs to someone else.  Is it possible, then, to simultaneously protect
the reproductive rights of both the surrogate and the intended parents?  Or will there always be an inherent imbalance
of reproductive rights and the potential for coercion in the enforcement of
commercial surrogacy agreements?


The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI’s online graduate programs, please visit our website.

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