As a participant in a IVF cycle, this is of interest to me, but looks like cut-and-dried contract law. If the contract is not honored, the intended parents should be free to walk away and recoup costs.

...and a scenario which never would have occurred to me, since I have no involvement in anything relating to the world of surrogate mothers.

I'm a little aghast at the 'surplus inventory' clause in the contract. I was not aware that 'overstock' was so common- and who decides which one gets aborted, and which goes to term, and based on what criteria? I do agree with Ana, that it's the woman's body, and she shouldn't be compelled to have an abortion if she doesn't want one. But if she doesn't I think it would be fair to make her responsible for the disposition of the extra babies. But then what happens if the parents don't want the unwanted fruit of their loins to be put up for adoption by who-knows-who? Especially if the surrogate mother benefits financially by doing so? it's feeling like a whole new can of worms here.

How would you? Who would strap a woman down and do that? (Not going to happen.)

IVF often results in 'overages'. You induce release of multiple eggs at once with a variety of very expensive injections. About $5,000 worth of vials in a small cardboard box, to be specific. The eggs are harvested, and then implanted. Monitored for a few hours (about 9 IIRC) and then compared to see which are developing 'properly' for shape and division rate.

They then implant them. Implantation is a scattershot 'best guess'. You can get it close, but you can't make it actually attach and take hold. So, due to the cost, they usually throw in all the 'good' fertilized ovums, hoping for a decent implantation rate.

In my experience, we tried to implant 2, and none 'took'. All told, it was about $10k USD out of pocket to attempt that. Easier/cheaper to selectively reduce the implanted result, than to attempt to implant just one or two at a time.

Sometimes people freeze 'surplus' and go with a lower number in the initial attempt to implant, but IVF is often dealing with a pre-existing problem, like bad quality sperm or eggs, so the result is not always great. Out of 9 fertilized ovums, only 2 were worth attempting to implant, and the rest were already so far behind the curve, no point freezing them and trying later. Freezing further degrades the quality.

The reason these clauses are in the contracts for surrogates is because the higher order multiple pregnancies ( triplets or more ) have very high complication rates and often result in problems including pregnancy loss, extreme prematurity with all the resulting issues from that as well as being extremely hard on the carriers health and almost always requiring surgical delivery. So, there is good reason for the contracts to clarify what is expected when a multiple pregnancy is discovered.
These kinds of conflicts can also be avoided by better matching of surrogate carrier to intended parents. You shouldn't mix pro-lifers with pro- choices.

Last edited Mon Dec 28, 2015, 07:18 PM - Edit history (1)

for the resulting life (lives) as if they had created the pregnancy in the more common way.

Prospective biological parents who would selectively abort fetuses because they didn't want multiple babies don't really sound like good parental prospects to me. Perhaps they should get a puppy instead.

I am pro choice, but we are talking three parents here, as well as the fetuses, not just two.

That's what contracts are for, to ensure the product or service conforms to the buyer's expectations.

I don't know about CA, but in my state, when this process is complete, after a three day reconciliation period, the original birth certificate is marked Secret by the state, filed away, and a new one is issued with the new parents names on it, as if they'd given birth to the kid. The biological host has zero remaining interest in the child.

UNLESS

If the birth mother can show she was coerced, or forced into it, then it can be reversed. There's contract law for you.

The protections exist both ways. If the resulting child(ren) had a birth defect, the adoptive parents, per the contract, can't simply walk away and leave the surrogate stuck with it/them.

They wanted X. They got Y. The contract outlined the particulars of X. They should be free to walk away. The birth mother knew the rules going in. She could have said 'no' to that provision of the contract, or added to it, specifying that additional kids could be born, but the adoptive parents would only take and only be responsible for 2.

There's no magical metaphysical dimension to this because a fetus is involved.

Don't want to deal with shit like this, spell out a mutually agreeable contract. This potential outcome is known, and raised as a possibility in 100% of IVF cases, before they attempt the IVF cycle. 100% without fail.

Edit: I should add, the objection to 3+ may not be 'we don't want 3' but may be 'we don't want the added strain of a third+ on the two we are hoping for in utero.

cannot be forced to have an abortion, no matter what contract she signed.

I don't know what the married couple can do besides terminating their end of the contract.

I don't think there would be damages to the surrogate, but I think the prospective parents should/could probably get whatever they have invested back out of it. Arbitrary enforcement of contracts is bad for all sides. Surrogates and intended parents. The contract protects both parties.

Maybe they can't get their money back, but they should certainly be able to walk away from the contract.

This could be an argument to require an insurance underwriter to this sort of contract as well. Instead of paying back out of pocket for whatever expenses were already covered, in this case, the surrogate could defer the costs to the insurance, since this isn't a situation the surrogate created on purpose. Basically they lost the dice roll against a random factor.

underwrite this sort of situation in California (where surrogacies seem more common than elsewhere.)

Unless I missed it, neither the OP not the article at the link says anything about whose eggs were used. Were these women the actual biological mothers or the "gestational hosts"?

is allowed to ignore or refuse to comply with the terms, then I assume the other party can as well. Perhaps the biological parents should walk away, leaving the 'host' to fend for herself and the (potentially) at-risk babies. Sad and complicated situation.