The Atlantic recently quoted Professor Cyra Choudhury in its article, When Parents and Surrogates Disagree on Abortion, by Katie O’Reilly.
The Atlantic’s article (“The Atlantic”) discussed the various legal problems that stem from surrogate contracts involving competing rights: mainly, the right to privacy and the right to contract. Surrogate contacts, which are governed by general contract law principles, are not foolproof. The Atlantic focused on a recent case, in which a surrogate mother carrying triplets sued a commissioning father because he wanted her to abort a fetus. The pro-life surrogate mother filed a lawsuit alleging that surrogacy laws violate both Due Process and Equal Protection.
What rights, if any, does a surrogate mother under surrogacy contract have if she is carrying triplets and the commissioning father only agreed to keep one child? Does the surrogate mother have a right to refuse to abort two of her three fetuses if the commissioning father requests that she undergo an abortion to protect the one baby he agreed to keep?
The Atlantic quotes Professor Choudhury stating, “[b]ut while a surrogate has a constitutional right not to undergo the abortion—or to undergo one if she wants to—she has no such right to the payment stipulated in the contract.”
When FIU Law discussed surrogacy contracts with Professor Choudhury, she elaborated on the legal problems associated with such contracts. Professor Choudhury explained:
Surrogacy contracts demonstrate the difficulties in using contract in family law particularly in the context of such a traditionally private area as reproduction. Most surrogacy contracts include clauses for reducing the number of fetuses the surrogate carries because multiple births carry higher risks not only to the surrogate but also to the other fetuses. But at the same time, women’s rights to abortion comes with the flip side right to not abort. As such, these clauses cannot be enforced against the wishes of the surrogate. Surrogacy contracts also diminish a surrogate’s privacy in terms of her healthcare decision making. When you have commissioning parents and a surrogate, the surrogate necessarily gives up some of her rights to privacy in the agreement. Commissioning parents are in the position to demand to know the health and wellbeing of the surrogate and the child or children she is carrying.
Professor Choudhury, who taught commercial law for many years, became interested in the intersection between family, commercial and business law matters. When asked what sparked her interest in the legal consequences of surrogacy contracts, Professor Choudhury shared with FIU Law:
I began to see a number of stories in the popular press with increasing frequency on the horrors of transnational surrogacy. The focus was primarily on India, which is a region that I study. As I began to investigate, I wanted to understand the position of surrogates themselves, the legal regulation of these arrangements, and the possible avenues of future regulation.
The Atlantic explained that some lawyers anticipate the result of this case will lead to tighter regulation of surrogacy contracts. A down side to such regulations, the Atlantic hypothesized, would be encouraging people “to seek surrogacy where it’s cheaper and easier, typically outside of the country.”
Professor Choudhury shared her perspective on courts balancing competing rights in the United States:
Future regulation is a tough question because it has to be specific to the context. In the United States, we have strong individual rights. It is quite clear that a surrogate cannot be forced to undergo an abortion or a reduction without her consent. The more interesting question is the contractual one: are there doctrines that might prevent a commissioning parent from seeking damages from a breaching surrogate? Right now, it is hard to see how traditional contractual mechanisms would work. Certainly, the parties themselves could explicitly contract around the issue of reduction and the consequences. It should be clear that if a pro-life surrogate or even one that changes her mind, which can happen, decides that she will not reduce multiple fetuses, that that risk is borne by the commissioning parent. But absent the explicit terms, courts are in a tough position in balancing the rights in these arrangements.
The Atlantic’s article is available at:
http://www.theatlantic.com/health/archive/2016/02/surrogacy-contract-melissa-cook/463323/.