What Happens When Surrogacy Meets Abortion?


Surrogacy, as with many forms of assisted reproductive technology (ART), has its ethical, legal and societal implications (Remember “Baby M”?). Far be it from me to stand in the way of – or judge – a woman, man or couple, who are desperate to parent and bring a baby into their lives by whatever safe, healthy and legal means they choose. Of course, as I mention, it has not gone without notice that ART does bring rise to some complex and controversial bioethical considerations. Jennifer Rodgers broaches one of these conversations on RH Reality Check, in fact.

So, when I read today of the story about a woman who acted as a gestational surrogate for a couple, in Vancouver, BC, and what ultimately transpired, I was compelled to explore it.

According to the reports, the surrogate discovered that the fetus she was carrying would likely be born wtih Down Syndrome. An ultrasound during the first trimester showed the fetus to have trisomy 21 – the genetic condition which leads to Down Syndrome. With this knowledge, the couple reportedly told the surrogate that they wanted her to have an abortion.

According to the physician treating the woman, Dr. Ken Seethram, it appeared that after the news of the trisomy 21 condition was revealed, neither the couple nor the woman were prepared for what to do next.

“They were certainly quite shocked,” he said. “Obviously, [the parents] had come on a long journey before commissioning the surrogacy, [but] all they were thinking about was success.”

“…the couple and the surrogate always got along and their disagreement on what to do never became acrimonious or tense, Dr. Seethram said. But the physician with Pacific Centre for Reproductive Medicine said it appeared to him that the three had never seriously considered such a scenario before the pregnancy.”

Under the contract entered into by the three adults, if the surrogate decided to bring the pregnancy to term against the wishes of the couple, the couple were “absolved” from any responsibility to care for the child.

Ultimately, it didn’t come to that. The woman eventually chose to have an abortion, in that first trimester. It was a decision she came to on her own, in part after weighing her current familial obligations (she already has two children). 

And experts quoted in the article had different perspectives:

Dr. Seethram’s presentation to the Canadian Society of Fertility and Andrology conference suggested the accord signed by the three in B.C. may have undermined the surrogate’s right to make decisions in a “non-coercive” environment.

While a former surrogate and parent advocate notes,

A former surrogate who helps parents and mothers make such arrangements said the parties should agree on what they would do if defects are discovered during pregnancy, ensuring they have the same views on abortion. If a dispute still arises, however, parents ought to be protected, said Sally Rhoads of SurrogacyInCanada.ca.

“The baby that’s being carried is their baby. It’s usually their genetic offspring,” she said. “Why should the intended parents be forced to raise a child they didn’t want? It’s not fair.”

Rhoads goes on to say,

In some U.S. jurisdictions, in fact, parents can even sue a surrogate to recoup their payments if the woman insists on going ahead with a pregnancy against their wishes, Ms. Rhoads said.

The American Surrogacy Center strongly advises that any issues regarding potential birth defects and abortion always be discussed prior to entering into any contractual arrangement.

There is a question, of course, about the responsibility parents who “commission” a pregnancy have in this scenario and the “abandonment” of not only a contract, but the woman and the fetus, should the couple decide not to go through with the surrogacy agreement. This leaves a pregnant woman in an extremely difficult scenario, of course. But there are other challenging situations. What if the surrogate decides, after being implanted with a couples’ fertilized egg, that she in fact does not want to go through with the pregnancy and wants an abortion within the confines of the law? She should not be forced to bring the pregnancy to term, of course. Yet, the fetus growing inside of her is “technically” the biological creation of another.

The legal and bioethical considerations are complex. The laws from state to state vary, as they do from country to country. There is hardly unity on surrogacy as a feminist or reproductive justice issue, either. Some say surrogacy exploits lower income women. Yet, for gay couples looking to start a family, surrogacy may be an enticing option. Organizations like the Women’s Bioethics Project continue to explore the rocky landscape of ART, including surrogacy, and how we can and should be structuring our public policy in relation to these issues. As recently as May of this year, the group was working with reproductive justice and women’s legal advocates to draft legislation on commerical surrogacy in Washington state. But as this case highlights, it’s hardly a cut and dried issue and we’re still left with more questions than answers.

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  • arekushieru

    The state of a pregnancy should always, ALways be determined by the woman who is pregnant.  I believe that coercive policies such as these (inCLUding a woman’s determination on whether she IS going to become a surrogate) should be revisited and revised.  Much like I believe should be done with the coercive policies of the Chinese government.   But, at the same time, a pregnant woman (and potential surrogate) should be given as much lateral movement as possible within the range she is currently ‘allowed’.  

    That’s all I can say on the subject.  I’m just not as knowledgeable on the rest of the subject matter concerning contracts and bioethical considerations.