When surrogacy goes wrong

Today’s National Post features an article about problems arising when a surrogate mother, and the child’s biological parents, disagree about whether to carry the pregnancy to full term:

When a B.C. couple discovered that the fetus their surrogate mother was carrying was likely to be born with Down syndrome, they wanted an abortion. The surrogate, however, was determined to take the pregnancy to term, sparking a disagreement that has raised thorny questions about the increasingly common arrangements.
Under the agreement the trio signed, the surrogate’s choice would mean absolving the couple of any responsibility for raising the child, the treating doctor told a recent fertility-medicine conference.
Dr. Ken Seethram, revealing the unusual situation for the first time, said it raises questions about whether government oversight of contracts between mothers and “commissioning” parents is needed.
A bioethicist who has studied the issue extensively argues that contract law should not apply to the transaction, unless human life is to be treated like widgets in a factory.
“Should the rules of commerce apply to the creation of children? No, because children get hurt,” said Juliet Guichon of the University of Calgary. “It’s kind of like stopping the production line: ‘Oh, oh, there’s a flaw.’ It makes sense in a production scenario, but in reproduction it’s a lot more problematic.”
Prof. Guichon speculated that courts likely would not honour a surrogacy contract, drawing instead on family law that would require the biological parents to support the child.
It appears no surrogacy contract has actually been contested in a Canadian court, however, leaving the transactions in some legal limbo.

Child support is considered a right for the child, not the recipient parent, so Canadian courts will rarely allow the parent to waive child support in a separation agreement or consent order. (It may be allowed in unusual cases – if the non-custodial parent agrees to a division of property in the custodial parent’s favor, for instance – but the court will want to be satisfied that the child’s best interests are being protected.)
Thinking about this case, I’m not sure it’s as ethically challenging as it first seems. If a would-be father changed his mind about having a child, he would not be able to force the mother to abort the pregnancy, nor would he be able to get away without paying support. The same principles, in my opinion, would apply here.
Now, what if the surrogate changed her mind, and decided to terminate the pregnancy? Would the 1989 Tremblay v. Daigle decision, in which the Supreme Court of Canada ruled that a father has no legal right to prevent the mother from obtaining an abortion, apply in a case where both biological parents wanted to stop the surrogate mother from aborting? Now that will be a controversial case, and it’s probably just a matter of time before it comes up. (My take: the courts would not stop the surrogate mother from aborting, but she could be found liable for damages for breach of contract.)

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