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One more for the road
I was surprised to find, after last month's extensive discussion initiated by a post by @ChickenOverlord of a Canadian surrogacy/abortion case, that no one had posted a substantially similar, though differing in key details, US version that has recently generated an application to the Supreme Court for a stay. The case is different enough that it seems like it might serve as a stress test for some of the claims and ethical intuitions made in the previous discussion.
To summarize the overlapping portion: in both cases the surrogate refused the "commissioning" party's request for abortion following detection of fetal abnormalities, gave birth, and was then involved in extensive litigation. The previous case had a significant same-sex surrogacy culture war nexus. This case features US federalism and jurisdictional questions, as well as the more significant but partially treatable hypoplastic left heart syndrome.
The very compressed summary is that McKenna West of Alaska was asked to abort, per their contract, by Omar Ahmed and Nausheen Gilkar of California. She subsequently fled to Texas, with ongoing litigation as to the ultimate parental rights and appropriate forum. The child is referred to as Gabriel and Rumi by the respective parties. Which probably leads into the stronger, though possibly less legalistic, metaphysical question in this case about what constitutes abdication of parental rights.
In some respects, the current case reverses the question of limiting principle. In this case, the pre-existing contract specifically called for the right of the commissioners to opt for abortion due to fetal abnormalities, and the abnormalities are arguably more incurable. There is some question as to whether that makes the arrangement more binding. It's not clear to me where you should draw the intuitive line at which the contract is entered into with so much foreknowledge, with so much consent, and with abnormalities so severe that we should feel compelled to enforce such a clause. In the previous case it was observed:
That it's unclear whether the problem can really be resolved with sufficiently strong contractual terms. I'm slightly more inclined to accept the premise that surrogacy in general opens up a Pandora's box of ethical problems. Perhaps atomizing the individual biological connections of procreation has produced a system that makes ordinary moral intuition untenable. It was argued in the previous thread that either a full retvrn to nature, or extreme proceduralization and medicalization, might be more stable equilibria.
Is anyone outside the court system seriously defending the bio parents here? Like (the conviction of) Lindsay Clancy 2.0, the virginia mom found guilty of abuse for letting her 5-year-old walk 1/2 mile unsupervised in a gated community.
Another win for jury trials, it would be nearly impossible to select even a majority of ordinary people who’d convict either.
Me. It's not her child and she had signed a contract.
I'm glad you responded. But
The bio parents don't want the child. Even ignoring that a child isn't property and did not sign (at this point they're born, and even before then, I see abortion as a lesser evil); if somebody doesn't want something for themselves, why should they be allowed to deny others?
The fetus is absolutely their property. Should IVF clinics be allowed to use your frozen eggs without your consent if you don't need them?
By that logic, why not go full Murray Rothbard, and declare children to be the parents' property?
You mean full Rome?
Article
tl;dr: A child is a person in possession of the right of self-ownership but not yet competent to exercise that right, so it is placed under the pseudo-ownership/trusteeship of its parents. (The parents are not allowed to harm the child through action, but are allowed to let it come to harm through inaction, and are allowed to sell the trusteeship to others.) The child can assert its right of self-ownership and end the trusteeship once it is competent to do so (e. g., by leaving the parents' household).
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