Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Wednesday, November 17, 2010

Canadian Surrogacy Case Sparks Intense Debate

A recent case making its way through the Canadian appellate process is renewing the legal and moral debate about surrogacy arrangements:

The deal was signed; the sperm was collected; the baby was conceived. All the usual steps in the surrogate motherhood cycle were successfully completed. Then something went wrong. The dream baby the young, wealthy British Columbia couple had planted in the womb of a young, poor single mother turned out to have Down syndrome.

The prospective parents pulled out and called for an abortion post haste. They didn’t want damaged goods. But the surrogate mother refused. She would raise the child, she said, if only they would help her with expenses. That was not part of the deal, they responded. It would be totally her responsibility. As a single mother with two children of her own, and a contract that gave her no leverage, she reluctantly had the abortion.

When the case was raised — with no names attached — at a recent fertility conference in Canada, it created headlines and debate nationwide — and set antennae atwitter in the U.S. too. No surrogacy contracts have ever been contested in Canada, but ethicists warned that it was bound to happen, and when it did, those contracts might not, and should not, stand.

Similar issues will arise increasingly in the U.S., ethicists warn, where only a handful of states specifically back surrogacy contracts.

Guichon hopes that someone will challenge a surrogacy agreement in a Canadian family court. There, she says, it doesn’t matter what the parents agreed to before a baby was conceived or born through natural means; it just matters who was biologically responsible for the conception.

Guichon believes that under family law the court would put a financial onus on the commissioning parents regardless of the pre-existing contract. After all, she notes, “all three people came together to create a child.”

In the U.S., says Parks, “there is a patchwork of laws from state to state.” Some have no laws; others have outlawed surrogacy, regarding it as tantamount to baby selling. According to the Human Rights Campaign website, six states explicitly accept surrogacy contracts: Arkansas, California, Illinois, Massachusetts, New Jersey and Washington.

On the other hand, at least 19 states ban them, another 13 won’t enforce contracts, and 10 ban a third party — such as a lawyer — from profiting from such contract agreements.

Read more here.


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Whats the purpose of that surrogacy anyway? you cant abort that baby and definitely if the baby will be born it will be supported.

Posted by: katthedley | Feb 1, 2011 2:00:01 AM

wow!!! that's an intense case!!!

Posted by: Tulsa Divorce Attorneys | Sep 16, 2011 5:07:51 PM

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