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There is a case hitting the news today about a surrogate who was offered $10,000 to abort a baby. Although this title is an oversimplification of the dilemma faced by the parties in this story, this is a very real circumstance that could arise and highlights the importance of a strong match between the Intended Parents and the Surrogate.

In this case, the Surrogate, Crystal Kelley, agreed to act as a gestational carrier for the Intended Parents. Pursuant to the terms of their legal contract, Kelley became pregnant with an embryo belonging to the Intended Parents. About half way through the pregnancy, it was discovered that the fetus had severe congenital and genetic abnormalities and the Intended Parents requested that Kelley have an abortion. Although Kelley had signed a legal contract stating that she would have an abortion if requested by the Intended Parents, she did not feel that this was the morally correct thing to do. The Intended Parents offered her an additional $10,000 to have an abortion, but Kelley would not agree.

In most surrogacy contracts, there is a clause stating that the surrogate will agree to an abortion, if requested by the Intended Parents. Typically, this clause requires that the request be based on genetic or congenital abnormalities, or selective reduction in the case of multiples. Usually, there is language in this clause stating that the surrogate understands that she has a constitutionally protected right to reproductive freedom, and by entering into the contract, has agreed to waive that right and allow the Intended Parents to make the decision when and if it is necessary. Often, the contract will contain language similar to the following:

In the event the Surrogate chooses to exercise her right to abort, or not abort, or selectively reduce or not reduce, in a manner inconsistent with the provisions of this Section IX, it is understood that such action shall be considered to be a material breach of contract by the Surrogate, resulting in serious legal repercussions including but not limited to all remedies available to the Intended Parents in law and in equity, including the Surrogate’s liability for any added cost associated with the care of the Child, and also including but not limited to the cost of medical and other care of a Child with special needs, In addition, in said event the Surrogate shall be responsible for all medical expenses with respect to her pre-natal care and delivery which are not covered and/or paid by insurance.

So, we have to ask ourselves the question of whether a court will enforce the terms of this contract if the Intended Parents were to sue a surrogate for a cause of action such as “wrongful birth”? Would the surrogate then be liable to the intended parents for the costs associated with raising the baby? What about the medical costs incurred on behalf of a baby who suffers from genetic or congenital defects? The courts have not yet addressed these questions, but it is likely just a matter of time.

How can you avoid a fundamental disagreement with your surrogate?

If you are using a surrogacy agency, work closely with them to ensure that you are matched with a surrogate who has values that are closely aligned with your own. Would she choose an abortion under the same circumstances that you might?
If you are using a friend or family member as a surrogate, make sure to discuss the issue of abortion in detail and what circumstances may lead to having to make this decision.
Maintain good communication with your surrogate throughout the course of the pregnancy. Discuss any scenarios that arise as soon as possible, and if necessary, bring in a neutral third party such as a mental health professional or a mediator.
Always be honest and up front with your surrogate about what you are and are not comfortable with. This will create an open stream of communication and hopefully help to reduce conflict when you are faced with a difficult decision.

If you would like more information about how to choose the right surrogate, finding a good surrogacy agency in the Los Angeles, San Francisco or California area, or are looking for a surrogacy lawyer to assist you with your matter, please call 310-598-6428 or email Rose@PondelLaw.com