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I feel like the compromise would be to let the surrogate give birth to the baby in the case of birth defects against the wishes of the couple (her body, her choice and all that), but have the surrogacy contract stipulate that in that case the surrogacy turns into an embryo donation, so she gets to keep the baby and is not entitled to any compensation beyond the abortion indication.
That way, everyone wins: the couple does not have to raise a child with birth defects, and the surrogate does not need to abort against her wishes.
One might even go one step further and allow the surrogate (or really any woman with an unwanted pregnancy) to auction the surrogacy contract. A market-based solution to the abortion question, if you will. If anyone is willing to pay the surrogacy fee, that is a strong indicator that it is in the baby's best interests to be born, because they consider it viable and willing to spend money on it.
Agreed.
Well, the auction part sounds pretty psychotic. On the other hand, that’s kind of inherent to contract law. Even marriage contracts generate some insane implications.
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That was pretty much my first thought. If you sign up for surrogacy, by all means keep the baby even if they're gonna be half-braindead, but don't expect to be paid for the job.
If anything here can be called demonic (as in, driven by alien forces beyond mere human wickedness), it is not the act of purchasing a child from a woman individually (rather than in lifelong contract), but the use of courts to arbitrarily litigate sums in vast excess of the original contract from, as far as I can tell, thin air.
Disagree. The surrogacy is the service that was induced by the promise of the payment, and it's not reasonable to expect a warranty on a baby unless explicitly agreed to. She should get the money no matter what, but they should be able to refuse delivery.
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