A couple from British Columbia, Canada, have been embroiled in a complex ethical battle after their surrogate refused their request to abort the fetus she was carrying. The couple made the request after tests revealed the baby would likely be born with Down's syndrome. Although the parties had entered into contract, legal proceedings were not brought by the surrogate who, in the end, decided to have an abortion due - in part - to her own family obligations.
The commissioning couple used their own gametes to create an embryo, which was implanted in the surrogate to carry to term. During the first trimester of pregnancy, an ultrasound showed the fetus was likely to have Trisomy 21, the genetic abnormality associated with Down's syndrome.
Dr Ken Seethram, the treating doctor, recently addressed the Canadian Society of Fertility and Andrology on the dispute. He revealed that, according to a signed agreement between the parties, the surrogate's refusal of an abortion would absolve the commissioning couple of any responsibility for the child.
Canada's Assisted Human Reproduction Act prohibits commercial surrogacy arrangements, but the law on parentage is unclear. Experts say the Canadian courts would probably have held the contract to be unenforceable nonetheless and resorted to family law to hold the biological parents responsible for the child, if born. Dr Seethram, however, queried whether government oversight of contracts was required, given how contractual terms may undermine a surrogate's right to make decisions free from coercion.
Dr Juliet Guichon, a bioethicist at the University of Calgary, argues contract law ought not apply to surrogacy agreements as it undermines the sanctity of human life. 'Should the rules of commerce apply to the creation of children? No, because children get hurt', she said. 'It's kind of like stopping the production line: 'Oh, oh, there's a flaw.' It makes sense in a production scenario, but in reproduction it's a lot more problematic'. Rather, Dr Guichon argues family law rules are more applicable, under which the biological parents may be required to take responsibility for the child.
Professor Francoise Baylis, a bioethicist at Dalhousie University, has also spoken out on the issue of commodifying human life. 'The child is seen by the commissioning parents as a product', he said, 'in this case a substandard product because of a genetic condition'.
Sally Rhoads, of Surrogacy in Canada Online, said decisions pertaining to the future of a defective fetus should be made at the outset. Furthermore, she argued for the protection of the commissioning couple. 'The baby that's being carried is their baby. It's usually their genetic offspring', she said. 'Why should the intended parents be forced to raise a child they didn't want? It's not fair'. Ms Rhoads points to the United States where, in some states, the commissioning couple can sue the surrogate to recover costs if the surrogate continues with a pregnancy against the couple's wishes.
Amid this complex debate, what is clear is that guidance is required for surrogacy arrangements, which are becoming increasingly popular. Larry Kahn, a Vancouver-based lawyer who works on assisted reproduction and adoption law, says he has worked on over 35 surrogacy contracts in the previous three years - compared to about 15 ten years ago.