It is a line frequently used in defense of commercial surrogacy: that good contracts will make smooth and safe a practice that is inherently exploitative and primed for abuse.
Combined with what might be called a robust legislative framework, so the argument goes, well-drafted legal agreements settle the questions that might otherwise arise.
Among them: who the legal parents are, how the process will be conducted, which country's or state's courts will handle disputes and how unexpected developments, such as pregnancy complications, will be managed.
An ongoing dispute in the United States, however, appears to drive the final nail into that argument's coffin. It stands as a reminder that, where pregnancy and babies are concerned, the mother cannot be treated as a mere service provider, to be directed at will by the purchasing couple.
It is far too profound and consequential a process for that, whatever the efforts of those who would reduce it to nothing more than a transaction.
How a Routine Contract Became a Crisis
McKenna West, a nurse in Anchorage, Alaska, is a single mother of two, three if the unborn child commissioned by the client couple is included. She had wanted, as the legal documents put it, to earn more money without sacrificing time with her own children.
Encouraged by a friend's experience with a particular surrogacy company, West contacted an agency to "explore" becoming a surrogate and potentially providing a baby for a couple.
The agency, Worldwide Surrogacy Specialists, LLC, matched her with a California-based couple, identified only as A.B. and C.D., who were seeking a surrogate to carry a child for them. West went on to sign a surrogacy agreement with the pair.
According to legal documents, after West became pregnant with Baby Gabriel, the pregnancy proceeded well until a 20-week scan indicated that he had a "serious – but treatable – heart condition" known as hypoplastic left heart syndrome (HLHS).
Because of that diagnosis, the commissioning couple, A.B. and C.D., "demanded" that West fly to Seattle, Washington state, to undergo a "high-risk, late-term abortion of Baby Gabriel". She was sent there because, according to the court filings, no doctor in Alaska could be found willing to perform the procedure.
As might be expected, and as critics of surrogacy have long warned would happen, West had bonded with the unborn child growing in her womb over the course of the pregnancy, and struggled with that demand. Her struggle was compounded by the knowledge that, serious as it was, Baby Gabriel's condition still carried a "significant chance of survival" with the right treatment.
A.B. and C.D. did not relent. The court documents state that they "threatened severe financial repercussions" if West refused to comply with the abortion demand.
They were able to make that demand because of an "abortion-upon-demand" clause written into the surrogacy agreement the parties had signed. The abortion clause left West with a stark choice: kill the child in her womb, or incur "crushing financial penalties" that, it was claimed, could have run to more than $250,000.
Faced with that dilemma, West sued for a declaration that the contract was unenforceable and void, arguing that enforcement of the abortion clause would violate her right to privacy and bodily autonomy under the Alaska Constitution.
No Contract Can Contain What Surrogacy Creates
At this point, the question of jurisdiction entered the legal battle. West wanted, as the agreement had specified, for all matters to be settled in Alaska, while the couple argued that California was the proper forum and pursued relief there.
As a result, the litigation has since become less about the original dispute than about which jurisdiction has the authority to decide it: the surrogate's home state of Alaska, or the clients' home state of California.
Meanwhile, running alongside the legal proceedings, West had decided to relocate to Texas so that she could deliver Baby Gabriel at a hospital specializing in the condition he had been diagnosed with.
In response, A.B. and C.D. launched their own legal challenge, seeking an order requiring West to give birth in California, under medical conditions of their choosing.
The latest ruling came on 28 July, when the Alaska Superior Court determined that those questions, including where West should give birth, were for the California courts to decide. It was a ruling likely to please the commissioning couple more than the surrogate, who had fought to keep the baby even as they had been ready to discard him.
Far from clarifying the process, in other words, the contract meant to govern it became the very cause of the litigation between the parties. The abortion clause, the forum selection clause, the parentage orders and the birth plan, all supposedly settled in the original agreement, are now the subject of legal proceedings.
There is no way to make surrogacy mess-free. It is an inherently messy proposition, one that inserts a desperate couple, or a single buyer, into a relationship as intense as that between a mother and her unborn child. A contract does nothing to ease the pressure such a situation is bound to create.
It simply gives the lawyers more to fight over, to everyone's detriment.