Over at Concurring Opinions, Dave Hoffman (via TMZ), writes:
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: