One of the most difficult issues any Intended Parent and Surrogate have to deal with is termination of a pregnancy. It is devastating on so many different levels. In every consultation, I speak to my clients about the legal limitations that exist when Intended Parents and their Surrogate disagree about how to handle issues such as selective reduction, fetal reduction and termination of pregnancy. I inform my clients that should such a disagreement arise, there is very little that can be done from a legal standpoint as no court in this country could order a Surrogate to undergo a termination against her wishes or enjoin her from having one. Hence, it is imperative that the Intended Parents and their Surrogate be of one mind as to how they will deal with these issues should they arise during the pregnancy. The Intended Parents and Surrogate need to be screened beforehand to ensure they are compatible on many levels, including their philosophical, religious and emotional views on issues such as termination and reduction.
Further, it is incumbent upon the agency (if one is retained) and/or the mental health professional to explore these issues in great depth before a match is consummated. Finally, I speak to my clients about consulting with their physician about the medical appropriateness of performing PGD and undergoing elective single embryo transfer to further mitigate the risk of having to confront the issue of termination.
Sadly, many Intended Parents and Surrogates are not properly prepared for these issues and problems like this occur:
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.
Dr. Seethram’s presentation to the Canadian Society of Fertility and Andrology conference suggested the accord signed by the three in B.C. may have undermined the surrogate’s right to make decisions in a “non-coercive” environment.
The surrogate, a mother of two children of her own, eventually chose to have the abortion, partly because of her own family obligations.
A former surrogate who helps parents and mothers make such arrangements said the parties should agree on what they would do if defects are discovered during pregnancy, ensuring they have the same views on abortion. If a dispute still arises, however, parents ought to be protected, said Sally Rhoads of SurrogacyInCanada.ca.
“The baby that’s being carried is their baby. It’s usually their genetic offspring,” she said. “Why should the intended parents be forced to raise a child they didn’t want? It’s not fair.”
In some U.S. jurisdictions, in fact, parents can even sue a surrogate to recoup their payments if the woman insists on going ahead with a pregnancy against their wishes, Ms. Rhoads said.
Disputes are rare here, but she said it is usually surrogates who end up feeling most aggrieved. She recalled one case where the mother conceived twins, the parents asked for a procedure to reduce the number of fetuses to one, and the whole pregnancy was inadvertently lost….
The conference presentation disclosed no names or other personal details on the B.C. case, but Dr. Seethram said it occurred within the past year.
The surrogate was implanted with an embryo created with the parents’ egg and sperm. An ultrasound during the first trimester showed the fetus was likely to have trisomy 21, the genetic abnormality that leads to Down syndrome. A further test confirmed the diagnosis.
The couple and the surrogate always got along and their disagreement on what to do never became acrimonious or tense, Dr. Seethram said. But the physician with Pacific Centre for Reproductive Medicine said it appeared to him that the three had never seriously considered such a scenario before the pregnancy.
“They were certainly quite shocked,” he said. “Obviously, [the parents] had come on a long journey before commissioning the surrogacy, [but] all they were thinking about was success.”
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