A Canadian couple discovered their fetus had Down syndrome, and they wanted an abortion. But because they were using a surrogate, their case got a lot more complicated.
According to the National Post, the surrogate who was carrying the fetus didn't want to abort, and so the decision about the fate of a pregnancy became an issue of contract law. The surrogacy agreement stipulated that if the surrogate went ahead with the pregnancy, the biological parents would have no responsibility toward the resulting child. Some, however, feel that traditional legal strictures shouldn't apply in this case. Says bioethicist Juliet Guichon,
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.
It's certainly true that surrogate pregnancy is a lot more problematic than a production line. But if surrogacy agreements aren't binding contracts, the practice could potentially become even more problematic. And, asks Sally Rhoads of SurrogacyInCanada.ca, "Why should the intended parents be forced to raise a child they didn't want? It's not fair."
Abortion in cases of assisted reproduction is always controversial, in part because at some point, the parents involved did want a child — passionately enough to pay a lot of money, go through invasive treatments, and potentially contract with a third party. We tend to be especially hard on parents who change their minds after going through so much. But this case is even more complex than, say, selectively aborting fetuses conceived through IVF, because it involves another adult, who some would argue should also get a say in what she does with her body.
In the end, the surrogate decided to abort anyway. And while it's unfortunate that she had to take a step she never wanted to take, it's hard to see another fair way to resolve the situation. We can judge the parents for changing their minds when they found out their future child would have special needs, but parents who conceive without assistance are still free to abort for these reasons. We can liken the parents to a father who refuses child support — but then, such fathers don't sign contracts prior to conception stipulating situations where they will and won't pay (though some have argued that they should). In fact, surrogacy is one of the few situations where pregnancy actually becomes a legal agreement, and if we make it easy to declare this agreement void, we might make it very hard for people to work with surrogates at all. If anything, this case should underscore the need for prospective parents and surrogates to discuss all possible outcomes of the pregnancy very clearly at the outset, and make sure they have compatible views on abortion (the parents in the Canadian case apparently never had such a discussion). In something as complicated as surrogacy, everyone needs to be on the same page — and no one should just assume things will go according to plan.
Couple Urged Surrogate To Abort Fetus Due To Defect [National Post]
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