Couple urged surrogate to abort fetus due to defect

by jeeg 7. October 2010 01:26

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. In three other Canadian cases, surrogates are  now raising the babies after the commissioning couples got divorced and backed out, Ms. Rhoads said.

 

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."

 

It is an issue of growing importance. While there appear to be no  national statistics, experts in the field say that surrogacy  arrangements are becoming increasingly commonplace in Canada. Larry Kahn, a Vancouver lawyer who specializes in  assisted-reproduction and adoption law, said he has arranged more  than 35 surrogacy contracts in each of the past three years, up from barely 15 a decade ago. He said the surrogate is always represented by her own lawyer, but  the contracts usually absolve the parents of responsibility when a  defect is found and the surrogate refuses an abortion. He said he  knows of no disputes involving any of his clients, though he  acknowledged that it is possible the courts would not recognize the  contract if a legal battle did ensue.

 

Dr. Seethram said he believes that Ottawa will eventually pass  regulations to address the situation, but Mr. Kahn said he doubts  Ottawa will get involved.

 

Francoise Baylis, a Dalhousie University bioethicist, said the case highlights how human life can become like a commodity in such transactions.

"The child is seen by the commissioning parents as a product, and in this case a substandard product because of a genetic condition," Prof. Baylis said.

 

By Tom Blackwell , National Post 

 

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