It’s very thoughtful of Ethics Alarms readers to provide such high level content so I have a chance of completing the 2015 Ethics Alarms Awards before March. I am awash in potential Comments of the Day all of a sudden, and this is the first of nesting COTDs, both inspired by the recent post on the surrogate with gestating triplets who is blocking the attempt of the biological father to abort Eenie, Meenie, or Miney, he doesn’t care which.
New commenter J. Jonah Jameson—presumably not really Peter Parker’s employer—submitted a helpful personal story that puts much of that drama in perspective. Here is his Comment of the Day on the post, The Strange Case Of The Unwanted Triplet:
I am the biological father of a child born of a surrogate mother. I’m sure ResurrectedToday is correct that the father fully knew that there was a chance of triplets. But the surrogate knew the same thing, and I’m almost 100% certain that she agreed in advance that she would have an abortion if the father requested it. (If not, then there are a lot of lawyers, doctors and other professionals who did not do their job.) Either she changed her mind, or she never really intended to abide by that agreement.
I can say a few things about my own experience:
1. There were a lot of people involved in the process: me, the surrogate, the donor, the three lawyers representing us, the doctors, and the psychologists and social workers at the lawyers’ and doctors’ offices. In almost every conversation that I had with any of these people, the subject of multiple births was discussed. Everybody involved understood clearly that there was a very high possibility of twins, triplets or even more.
2. At the very beginning of the process, I filled out long questionnaires provided by my lawyer and the doctors’ office. One of the many questions was whether there were any circumstances under which I would want the surrogate to have an abortion. If so, I was instructed to describe those circumstances. This questionnaire was provided to the surrogate before she agreed to meet with me.
3. The surrogate also filled out a questionnaire before I met her, and she was asked whether there were any circumstances under which she would be willing to have an abortion and, if so, to describe those circumstances. A few potential surrogates stated in their questionnaires that they would not be willing to have an abortion under any circumstances. Some were willing to have an abortion whenever requested. Others stated that they would be willing to have an abortion but only under specified circumstances; often, they said that they would be willing to have an abortion to reduce a multiple birth to two babies but not to reduce twins.
4. Surrogates are in high demand and the supply is small. It can take many months to find a surrogate. A surrogate who states that she is unwilling to have an abortion will still have no problem finding a would-be parent who is eager to hire her.
5. The surrogate and I met face-to-face on three occasions before the contract was signed, once together with a doctor and social worker, a second time with her husband and children, and a third time alone. Each time, multiples and abortion were major topics.
6. The doctor told us that when there were four or more, he always recommended that the number be reduced to two, because of the danger to the life and health of both the mother and the children. When there were three or more, he usually but not always recommended a reduction for health reasons.
7. Although the doctor always used the terms, “reduce” and “reduction,” the social worker frequently used the terms, “abort” and “abortion.” She said that she didn’t want us to forget the reality of what we were talking about. In particular, she urged the surrogate to consider very carefully how she would really feel if asked to have an abortion.
8. My lawyer and the surrogate’s lawyer negotiated the contract, which included specific language describing exactly what the surrogate and I had agreed about abortion. Essentially, it provided that she could have an abortion upon the recommendation of the doctor to preserve her own physical (not mental) health but otherwise would not have one except at my request. I agreed that I would not request an abortion except for the babies’ health upon the recommendation of the doctor. This included a reduction from triplets to twins if the doctor recommended and a reduction from four or more to twins in all cases.
9. The contract specifically said that the decision to have or not have an abortion was solely the surrogate’s. She could have or refuse to have an abortion for any reason regardless of my wishes. It could hardly have said otherwise, since the Supreme Court has made it clear that no court can order a woman not to have an abortion that she wants or, contrariwise, to have an abortion she doesn’t want. If she broke our agreement, though, she would forfeit her fee and be required to pay damages for breach of contract. (By the way, I suppose this is consistent with JM’s view that the surrogate should only be “liable for the fee and the cost incurred by the foiled parents.” But it’s worth noting that the entire process ended up costing me about $160,000, which would have been far beyond the surrogate’s ability to pay. Would demanding that amount have constituted “pressuring a woman to have an abortion using tangible threats,” which is ethically wrong? How many hairs make a beard?)
10. The contract said that the surrogate was relinquishing her parental rights and that if any babies were born, she would be required to surrender them to me. According to the lawyers, this provision was specifically enforceable in all of the potentially relevant jurisdictions. That is, the court would order her to turn them over if she refused.
11. Now that the issue has come up, it occurs to me that we never did talk about what would happen to the unwanted children if she refused to have an abortion when I requested. I pulled the contract out and, as best I can tell, she was supposed to turn all of them, wanted or unwanted, over to me. At that point, I suppose I could have put the unwanted one up for adoption, or maybe left it in a basket at the front door of a convent.
* * * * *
This is a long way of saying that the situation described in the article is one that was discussed with the surrogate at length many times, and that the surrogate knew exactly what she was agreeing to. Before the contract was signed, she had many, many chances to decide that she did not want to agree to an abortion. She could have walked away at any time and signed a contract with someone else who wouldn’t have asked her to have one. But she didn’t.
Now she has changed her mind. She wants to keep her fee and the babies. She’s talking about a custody hearing, so I suppose she also wants the father to pay child support to her. Whatever you may think about the father, it’s clear that her conduct has been far from ethical.
Also, if we can pause for a moment, there is this information given by his lawyer and hidden away at the bottom of the Post’s second story: “The intended dad plans to claim parental rights to all three kids… [He] did initially request Cook to abort one of the triplets — but only for health reasons based on the recommendation of doctors. But when Cook refused, the dad respected Cook’s wishes and backed off. He did not pursue legal action for breach of contact and continues to make medical payments to her.”
Graphic: Staffing Talk