Slate has more details here about funds missing from trust accounts that a California surrogacy agency recommended its clients establish to facilitate payments to surrogates. The Slate article, entitled “Fetal Foreclosure,” asks in its subtitle, “If You Stop Paying a Surrogate Mother, What Happens to the Fetus?”
Here’s one of the sentences in the article that got my attention:
Thousands of women have hired themselves out as gestational surrogates. If you’re the child’s genetic mother, you can put a clause in the contract stipulating under what circumstances the surrogate can abort the pregnancy. But no court will enforce that clause, because you aren’t the one who’s pregnant. The surrogate is. She can choose abortion unilaterally. All you can do is stop paying her for carrying the child.
I have deep, deep ambivalence about viewing surrogacy arrangements as “just” contracts. I believe that a woman is capable of making a fully-informed decision to carry a child for another person, and so surrogacy contracts should be respected by law. On the other hand, I think a surrogacy contract is very different from almost any other contract I can imagine.
The Slate article invites us to imagine a scenario in which a genetic mother (presumably) wants to prevent the gestational surrogate from aborting a fetus. What about a scenario in which a genetic mother (or father) wants to gestational surrogate to abort, but the gestational surrogate refuses? The vocabulary of contracts (bargain, benefit, specific performance, damages) collides in my mind with the vocabulary of constitutional freedoms (right of privacy, right to control one’s own body).
The vocabulary of contracts also fails when I try to think through what does happen to the fetus if the surrogate is not paid? I would hope that the surrogate would continue to carry the pregnancy to term. But does that devalue the surrogate’s work? Why should I hope (or even expect) a surrogate to work for free, when I don’t expect other workers to do the same? Because there is a child involved? Because I think pregnancy is work, but a different kind of work that is not as “important” as traditional market labor? Because the desire to have a child is so strongly felt?
At some level, the hope that an unpaid surrogate would continue to carry the pregnancy to term is grounded in a belief — which I suspect is a myth — that surrogates are altruists.