Yesterday, an ugly abortion controversy was resolved by the birth of “Baby Gabriel.” Here the legal/ethical gray areas involving hired surrogate mothers and the legal/ethical not-quite-so-gray areas regarding legal abortion mated to create a monster.
Upon learning that the baby gestating in their surrogate’s womb was not perfect (the unborn boy had a congenital heart defect), a California couple decided to exercise a provision in the surrogacy contract and force the mother-by-proxy to undergo an abortion. Instead, the surrogate fled to Texas, where abortion is illegal. Thanks in part to the intervention of Texas AG Ken Paxton (who is running for governor), the baby in question was born. Now there is a dispute over who gets custody. The birth mother has decided she wants the child anti-abortion activists have named “Gabriel.” The couple that wanted to have him killed wants him too.
Guess which I would choose, were I the infant.
I’ll examine that mess in Part II, but ahead, from the EA archives, is the last post Ethics Alarms had regarding the generally messy ethics issue of surrogate motherhood, from 2016, Pre-Unethical Conditions: Surrogate Mother Contracts And Making Babies With Jerks…
Ethics Alarms 
I wonder how this is considered a basis for abortion.
When troops suffer heart injuries in combat, the treatment is typically not to kill them…
There’s a more recent complication with surrogacy that has U.S. security issues at stake. Wealthy foreigners, especially Chinese, are using surrogate mothers in this country to produce dual-citizenship babies…at least one having over 100. Surrogacy is illegal in China.
There are all sorts of scenarios, from future espionage to “anchor babies” for family chain immigration, where this could be used against the interests of the country.
When I saw this on the news, I wondered if the California courts would order the child back to California to be killed.
And if this abortion gets into litigation and it takes years(how many 9?) to wind through courts, once a court rules that the abortion should have been done can they order the child to be executed on the basis of the prior abortion agreement?
If America is destined for another civil war at some point, it wouldn’t be too disconcerting for it to begin because Texas is protecting a child from California.
I have to start writing before I even finish this post (or get to the follow-up Part 2!). I promise to complete reading….
The underlying problem in these surrogacy cases is that these contracts seem to be “early”. I’d like to read the actual contracts in these scenarios to see what they contemplated, if anything. In truth, the surrogacy contract should be accompanied by a fully funded escrow account and a trustee. Payments from escrow should be structured for specific milestones and performance. The contract should recognize the surrogate’s absolute right of autonomy, but contractually, “life of the surrogate” should be the only consideration when allowing the surrogate to terminate.
Let’s generate a fictional scenario where the couple will pay $50k (inclusive) for a surrogate. The escrow account should be funded at 200% or $100k. If you can’t fund this escrow account in advance, you don’t get to sign a contract.
Payment for attempt ($5k)
Payment once pregnancy is confirmed at 8 weeks ($5k)
Recurring payments for pregnancy support ($10k spread-out)
Success fee for birth ($30k)
But also, the extra escrow is for additional success fees for a multiple birth scenario (Twins/Triplets) ($20k/ea)
Have a condition for payment from escrow for “Failure to adopt” or “Termination of Contract” from the bio-parents. ($5k/ea)
Termination of contract should be clearly stated as the limit of the bio-parents decisionmaking once pregnancy is established.
Once contractually terminated, THAT’S IT! (No take backs.) The surrogate should then have every legal option available to her as would be afforded a natural pregnancy, including, finding alternative adoptive parents for the child, adopting the child herself, or terminating the pregnancy where laws and situations permit.
In the scenario of accepting 2 babies of a triple-pregnancy, each baby would require a separate “termination of contract” and in such case, the bio-parents should not get to “pick and choose”. First two babies out fulfill the remaining active contract. Third baby still pays out the $5k termination but is either surrendered to the state, immediately adopted by the surrogate, or an adoption arranged by the surrogate.
I know it’s quite a bit of “ick” to be so cold and calculating, but that’s the purpose of a contract. Each reasonably plausible scenario should be considered by both parties and if they can’t live with one of the scenarios coming to fruition, then they shouldn’t enter into such a scenario rife with ethical quagmires.
Ok. Back to reading… 😉