Tagg Romney (son of Mitt) and his wife Jen entered into a surrogacy contract which contained a clause purporting to require the surrogate to abort on demand given a particular set of contingencies: We’ve learned Tagg and his wife Jen, along with the surrogate and her husband, signed a Gestational Carrier Agreement dated July 28, 2011. Paragraph 13 of the agreement reads as follows: “If in the opinion of the treating physician or her independent obstetrician there is potential physical harm to the surrogate, the decision to abort or not abort is to be made by the surrogate . . . In the event the child is determined to be physiologically, genetically or chromosomally abnormal, the decision to abort or not to abort is to be made by the intended parents. In such a case the surrogate agrees to abort, or not to abort, in accordance with the intended parents’ decision . . . Any decision to abort because of potential harm to the child, or to reduce the number of fetuses, is to be made by the intended parents.”
It is a common error to think that contract terms are specifically enforceable as written. I believe that there is literally not one judge in the country who would require a surrogate to abort on demand against her wishes notwithstanding this clause. In part, this results from the law’s traditional reluctance to enforce specific performance of personal services contracts. Here, that’s coupled with the constitutional interests in bodily integrity that the Baby M court discussed. Thus, while TMZ translates the agreement as “Tagg and his wife, Jen, had the right to abort the fetuses if they felt they would not be healthy,” the better line would be “Tagg and his wife, Jen, have an exit right which they can exercise if the surrogate fails to abort.” That is, failure to abort on demand would be a material breach by the surrogate, relieving the Romneys from their duty to pay. Whether it would additionally then lead the Romneys to be able to sue – for costs incurred, probably – is unclear to me, as I think some judges would find an abort-on-demand clause against public policy.
Abortion clauses are not that uncommon in surrogacy agreements. I have actually address the constitutional and normative issues briefly in two 2008 papers. Here are my thoughts on the matter:
In “The Constitution and the Rights Not to Procreate,” 60 Stan. L. Rev. 1135 (2008) I note lingering questions about whether the enforcement of these kinds of agreements is state action (pp. 1172-1183) triggering the 14th Amendment to begin with.
I then discuss advance waiver explicitly starting at page 1191, writing:
In the area of procreative rights, can a woman waive her right not to be a gestational parent by signing a contract not to have an abortion? A very small number of cases have considered the question, but the reasoning of the courts saying “no” makes a significant error: It confuses the right preventing the state from unduly burdening the seeking of a pre-viability abortion with the ability to waive that right. [FN234] In addition, Indiana has by statute made such promises *1192 unenforceable, and New Hampshire has passed a statute indicating that the remedy of specific performance for a breach is unavailable, though it is silent on the availability of damages. [FN235] Some commentators believe such contracts would be unenforceable. [FN236]
But skepticism as to the enforceability of contracts to have or refrain from having an abortion need not carry over into preembryo disposition agreements’ waivers of the asserted right not to be a genetic parent for at least two reasons.
Again, one can argue that there is no constitutional obstacle to enforcing a contract waiving the right not to be a gestational parent or the right not to be a genetic parent, but allow that state courts and legislatures could use the usual non-constitutional tools to invalidate the abortion contracts but not the preembryo disposition agreements. That is, while the Constitution does not forbid advance waivers of these rights, it is also does not compel acceptance of them, and instead leaves states discretion. As discussed above, there are a number of reasons that states might want to be leery about enforcing abortion contracts.
A second response, also an outgrowth of the unbundling introduced in Part I, is to suggest that the waiver question is not trans-substantive across the rights not to procreate, and that even if the Constitution bars advance waivers of the right not to be a gestational parent, it need not bar waiver of the right not to be a genetic parent, something that unbundling allows us to see. One easy doctrinal hook for this distinction would be to suggest that the right not to be a *1193 gestational parent has moorings in the Thirteenth Amendment, which we know to be unwaivable as a doctrinal matter. But, as discussed above, the Court has never relied on this reasoning in its abortion cases.
Even if both asserted rights are substantive due process rights, can we still suggest the waiver question is not trans-substantive? There is something a bit ad hoc about this argument; given that both (asserted) rights stem from the same constitutional provision, why should one be waivable in advance and not other? But such an objection proves too much, since it is beyond peradventure that (as discussed above) many of the procedural due process protections can be waived in advance, yet they come from the same constitutional text. One might counter that we ought to draw the line between substantive due process and procedural due process, but this distinction is too capacious. Imagine that a pupil’s parents agreed to send the child to public school, executed a contract with the school to that effect, and then refused to send the child. If the school attempted to recover the costs it had expended in preparation for the student, it seems implausible that there ought to be a constitutional problem in seeking to maintain a breach of contract action, notwithstanding the substantive due process right recognized in Pierce v. Society of Sisters not to send one’s child to public school. [FN237]
A different way of distinguishing the abortion contract is to argue, as Professor Tribe does, that the abortion rights ought to be singled out as non-waivable, because enforcing contracts not to abort would exploit a “special vulnerability of women in such a way as to reinforce their subservience to men, and thus their lack of fully autonomous and equal roles in social and political life.” [FN238] But the source of the “vulnerability” Tribe identifies as differentiating the sexes stems from gestational parenthood (which only women must bear), so this reasoning may give another reason why concluding that the right to and not to be a gestational is non-waivable does not require concluding the same about the right not to be a genetic parent.
On the normative side I deal with the question of whether damages remedies for breach of this kind of contract is different in “The Right Not to Be a Genetic Parent?” 81 S. Cal. L. Rev. 1115 (2008) , at pages 1184-1187, and when advance waiver makes sense and what form of waiver should be acceptable at pages 1162-1179, dealing with contracts pertaining to all the rights not to procreate not just abortion.