Ask the Surrogacy Experts

Dear Sensible Surrogacy;
I am interested in becoming a surrogate for someone I know, but they want me to sign a “surrogacy contract” saying that I would need to abort the baby if they decided to change their minds — say if they broke up or if the baby had Downs Syndrome. Is this legally binding? I wouldn’t want to give up the baby just because they ask me to, especially if it was healthy.
–Melina

 

Hello Melina;

I am not aa lawyer, but I got the following info from our legal resource in Ontario. Whether the contract is legally binding depends on the state/territory where the contract was drafted. In most countries, you are the legal mother when the baby is born, and remain until a court judgement changes the legal status of the parents. But depending on the jurisdiction, your rights may be limited by the contract. Even if the local courts would not force you to terminate the pregnancy, the parents may have rights to claim some financial damages in a civil suit.

That said, no one man or woman can be forced to have any medical treatment in Canada without a court order declaring them incapacitated and/or mentally ill. Agencies spend a great deal of time talking to a potential surrogate about abortion to determine her values. The same will be asked of the IPs. A surrogate also has a psychological assessment too in which this dealt with. This is all part of the Matching process.

However If you feel strongly about this issue, then I think the best option is to clearly discuss the problem with the Intended Parents. There are steps that you can agree to take with them to limit the possibility of such a situation. For example there are clinical tests that can detect Downs Syndrome before the embryos are transferred into the uterus (and thus eliminate that risk). There are also genetic tests that both the intended parents can take to ensure there are no conditions like Spina Bifida or Muscular Dystrophy. That would further reduce the likelihood of any substantial birth defect that would force a termination.

Finally, if the couple have a clause that the pregnancy be terminated if they should separate (which I honestly think is an unfortunate idea from the start) you can make an argument that the child should not be terminated be raised by a different family member. The good news is that any healthy baby born to un-wanting parents would be put up for adoption and taken by a loving family in a split second!

Intended Parents are always asking me about the risk that the surrogate may change her mind and want to keep the baby. Nobody asks about the risk that the parents may change THEIR mind and decide they don’t want the baby — but I assume that happens in equal measure. Frankly, I think such a situation should be prohibited by law — we would expect such protections for the parents, so why not for the surrogate? At the very least the surrogacy contract should cover such contingencies and force the parents to make arrangements for a family member to take custody of the baby.

Failing all else, you can make the case that you could take on the responsibility of the child’s custody if both Intended Parents decided to change their own minds. But make that clause iron clad — because it would be too easy for one of the genetic parents to switch their thoughts again and decide they want their baby back some time in the future.

All of what I’ve discussed here are very improbably situations… it’s much more likely that your pregnancy will be healthy and stress-free, and that the baby will end up with it’s happy family. But if you feel there is a significant risk that the baby may not be welcome by its genetic family, then I would re-think your offer of being their surrogate. (The world already has enough unwanted babies.)

I hope this is helpful.
– Bill,

 

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