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Author: GardenStateFool Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: of 445690  
Subject: Complicated Surrogacy Date: 3/6/2013 8:28 AM
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This is one of the most complex and compelling stories of surrogacy and the right to choose that I've read. I am pretty sure I can't do the story justice in snippets and it should be read on its own.

http://www.cnn.com/2013/03/04/health/surrogacy-kelley-legal-...

A couple of key points:

Crystal Kelley is a woman who wants to be a surrogate because she herself has experienced fertility problems. She has children of her own. She also needs the money surrogacy would offer.

She agrees to be a surrogate for a family who has three children and very much wants a fourth.

However, during the pregnancy, something goes wrong:

"Given the ultrasound findings, (the parents) feel that the interventions required to manage (the baby's medical problems) are overwhelming for an infant, and that it is a more humane option to consider pregnancy termination," they wrote.

Kelley disagreed.

"Ms. Kelley feels that all efforts should be made to 'give the baby a chance' and seems adamantly opposed to termination," they wrote.

The letter describes how the parents tried to convince Kelley to change her mind. Their three children were born prematurely, and two of them had to spend months in the hospital and still had medical problems. They wanted something better for this child.


Legal action ensues, a lot of it. Worth reading because it really emphasizes the patchwork of laws in this country and how they vary from state to state on all kinds of reproductive issues.

Over the years, states have developed different laws about surrogacy. Some, like Connecticut, say the genetic parents -- the ones who supplied the sperm and the egg -- are the baby's legal parents. Other states don't recognize surrogacy contracts, and so the baby legally belongs to the woman who's carrying the baby.

On April 11, in her seventh month of pregnancy, Kelley and her daughters left for one of those states -- Michigan. While she was gassing up her car to leave, her lawyer informed the parents' lawyer about her plans.


To add additional wrinkles, it turns out the parents actually ended up using donor eggs for the fetus that was implanted, so the biological mother is not, in fact, the biological mother.

The baby was brought to term and born, and adopted by another couple that Kelley got in touch with who were willing to adopt a child with special needs. If the baby survives, there is a 50% chance that she will not be able to walk, talk or use her hands normally.

The article doesn't gloss over the fact that this is an intensely complicated situation:

Just as there are two ways to look at Baby S., there are two ways to look at Crystal Kelley, the woman who carried her.

In one view, she's a saint who fought at great personal sacrifice for an unborn child whose own parents did not want her to live. In another view, she recklessly absconded with someone else's child and brought into the world a baby who faces serious medical challenges when that wasn't her decision to make.


I just read the article and I don't know if I've absorbed the implications yet. I need to think it through. I am a staunch and absolute defender of the right to choose, and the way that this case evolved stuns me on many levels.

It's clear to me that there are so many other aspects to consider when legislating this issue, way beyond the right to choose. And that the state-by-state approach to this, as it is for so many other issues, is going to cause a lot of additional complexities.

Thoughts?

GSF
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Author: 1poorguy Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418906 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 9:53 AM
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I read that yesterday. I'm a staunch right-to-choose advocate. However, IMO, the surrogate has no such right. She has rented out her uterus for one incubation. Period. The renters have the right to terminate any time they wish, but the surrogate does not (barring medical problems of the surrogate). If the renters choose to terminate, the surrogate has no say in the matter (again, unless it somehow threatens the surrogate's health, which seems unlikely in the case of a termination).

Further, it appears she signed an actual contract to that effect.

So, in my opinion, she was wrong. Completely and totally.

1poorguy

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Author: DirtyDollie Big red star, 1000 posts Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418914 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 11:20 AM
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The renters have the right to terminate any time they wish

I'm not saying you're wrong, but do you have any evidence of that? That's a key point and one that the two attorneys seemed to disagree on.

The two attorneys seemed pretty incompetent: one couldn't spell and the other sent a legal letter with a sentence written in all-caps. Not very professional.


So, in my opinion, she was wrong. Completely and totally.

Legally or morally? Legally, I'm not sure. Morally, I would have thought that if the genetic parents (although it turns out she wasn't the mother) decide not to go ahead, the surrogate should have the option to keep the baby.

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Author: 1poorguy Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418916 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 11:48 AM
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I'm not saying you're wrong, but do you have any evidence of that?

Well, first...it wasn't her baby. As I said, she was renting her womb out. If I'm renting a house, and I build some great widget in the garage (like, oh, the first Apple computer) the owner of the house does not have any claim on it. Even if utilities were included in the rental. I think the same principle applies here.

Based on the article, she was contractually obligated to terminate (although, as it says, there was no precise definition of "abnormality").

Fishman reminded Kelley that she'd signed a contract, agreeing to "abortion in case of severe fetus abnormality." The contract did not define what constituted such an abnormality.

Her attorney didn't seem to dispute this, only that she could not be forced to have an abortion.

If it was Kelley's ovum, then I'd agree she should have had the right to keep the baby. But it wasn't. It was in no way hers. She was just an incubator. It was not her choice to make. Legally or otherwise, IMO.

1poorguy

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Author: GardenStateFool Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418918 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 12:04 PM
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Legally or morally? Legally, I'm not sure. Morally, I would have thought that if the genetic parents (although it turns out she wasn't the mother) decide not to go ahead, the surrogate should have the option to keep the baby.

Ah, careful with that one. In some ways, that's exactly the logic that leads to the idea of "snowflake children." There are some people who want to change the law so that, in the absence of consent of the parents, people can "adopt" frozen embryos and carry them to term, with the intent of either keeping them themselves or having them adopted. It's one of the reasons that I did not freeze excess embryos when I went for IVF.

This raises a question of the treatment of genetic material, if nothing else. And the fact that she could go against the original agreement and the wishes of the people she had the contract with by going to another state really bothers me.

I know, it's the Constitution of the United States that permits that, but in an age when the "law of the land" is actually a fragmented patchwork, it's something to think about. Cross a river and all of a sudden you've got a bunch of new rights - or had other ones rescinded.

In addition, there was a specific clause in the contract (and clearly this would have been something the parents considered deeply, given the circumstances of their other children), that addressed the very issue that happened: the health of the fetus.

It's not that they "decided not to go ahead." It's that they were trying, by use of donor eggs and surrogate, to have a child that didn't have the same health problems as their other kids. It didn't work, and they strongly believed that they did not want to bring this child into the world for that reason.

The surrogate broke that contract and struck out on her own. Now, eventually a deal was struck (and how could it not be, given the fact that the surrogate also delayed until it was virtually impossible to terminate), and the parents do not have responsibility for this child and all of her complex needs (physical, mental, emotional and financial, for all of them).

However, they also have to live with knowing that a child is, at any given moment, in pain (or not) despite their directly-expressed wishes even before that child was conceived?

As I said, this is one of the most complex things I've ever read.

But legally, I can't see any other outcome than to strengthen the contracts of surrogates and ensure they are bound to what they have signed, even if that is termination of the pregnancy.

For those who will chime in with the idea of "forcing unwanted procedures on someone", please remember that this is a surrogate and they literally had to sign an entire legal document, perform all kinds of other activities just to get pregnant.

If she'd had reservations about this (and it appears that she has objections to abortion in general), then she should not have agreed to take part in a situation where that was a real possibility.

Instead, like so many people who go into pregnancy not anticipating complications, she was surprised to find out that it could really happen - and when it did, she decided not to stick to the contract because of her own preferences.

Unfortunately, the law permitted that.

The question becomes, how does this fit into the larger issues?

GSF

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Author: 1poorguy Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418921 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 12:16 PM
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Unfortunately, the law permitted that.

Playing devil's advocate...what you have suggested? If she said "no", and got a lawyer, it was almost certain the legal delays would pass the 22 week mark. Even if abortion was completely unrestricted, are we going to haul her to a clinic, strap her down, and perform the procedure? Even with a contract, that opens up another can of worms.

While I would equate it to a forced blood test (e.g. DUI), forcibly doing a medical procedure on someone is dicey. In addition to the contract I suspect there needs to be other laws or regulations in place to help enforce the contract (and in a timely manner, since with a pregnancy the timer is ticking away).

One might say then that surrogacy should be prohibited. But then the civil libertarian in me says "it's her body to do with as she pleases". If she wants to rent her uterus, it's her uterus. (But it's still not her fetus, unless she contributes an ovum...which she didn't in this case.)

1poorguy

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Author: GardenStateFool Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418922 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 12:23 PM
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Playing devil's advocate...what you have suggested? If she said "no", and got a lawyer, it was almost certain the legal delays would pass the 22 week mark. Even if abortion was completely unrestricted, are we going to haul her to a clinic, strap her down, and perform the procedure? Even with a contract, that opens up another can of worms.

No, simply that the contract needs to be more clearly written. And the unfortunate part is that the law permitted such a delay. Something else that should be part of the consideration in the contract.

It needs to be spelled out exactly what is being agreed to. Including the idea that for reasons x, y, and z, if termination is determined to the most appropriate course of action, then that's what happens (with and agreed-upon fee for time already spent, etc.).

In this case, it was already there and she didn't adhere to what was spelled out. That's a real problem.

The other problem is that she was in one state that said that the people who contributed the embryos were the parents, and she got to go to another state that said that she could be the parent. That's a huge loophole.

"Oh, I like this baby. I'm moving now... see ya!"

One might say then that surrogacy should be prohibited. But then the civil libertarian in me says "it's her body to do with as she pleases". If she wants to rent her uterus, it's her uterus. (But it's still not her fetus, unless she contributes an ovum...which she didn't in this case.)

As someone who knows more than I'd like to about infertility, I'd say that I don't support that idea. But I do support much better understanding of the possible outcomes and clarity and regulation of the contracts.

GSF

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Author: 1poorguy Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418923 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 12:28 PM
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As someone who knows more than I'd like to about infertility, I'd say that I don't support that idea.

I assume you mean the prohibition on surrogacy, not on the "it's her uterus".

I agree, we need better regulations governing this. It's not an uncommon practice now. We need some uniformity that transcends state lines, and as you say, doesn't allow any delays when a decision is made.

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Author: sofaking6 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418927 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 12:51 PM
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I dislike Kelly...I feel like she is lazy and and breeding is basically the only contribution she's able to make to society, and it isn't much of one.

Kelley had a counter offer. "In a weak moment I asked her to tell them that for $15,000 I would consider going forward with the termination," she said.
But as soon as she got in the car to go home, she regretted it, Kelley said.
Kron let Kelley know the parents had refused to pay $15,000. By that point, it didn't matter to Kelley -- she'd decided against abortion no matter what. Kron sent her an e-mail asking if she'd scheduled the appointment for the abortion.
Kelley wrote back a one-word answer: no.


I'd bet you $15k that if they had agreed to that amount, there would have been an abortion.

Baby S. -- her adoptive parents are comfortable using her first initial -- has a long road in front of her. She's already had one open-heart surgery and surgery on her intestines, and in the next year she'll need one or two more cardiac surgeries in addition to procedures to repair her cleft lip and palate. Later in childhood she'll need surgeries on her jaw and ear and more heart surgeries.

To me, this is just plain torture. I don't understand how people can choose to inflict so much pain on a child.

6

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Author: GardenStateFool Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418937 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 1:26 PM
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To me, this is just plain torture. I don't understand how people can choose to inflict so much pain on a child.

I don't, either. And it should be the choice the parents get to make. That she was able to legally interfere with it really bothers me, especially because they were taking such steps to try to make sure it didn't happen to this child. It's got to be heartbreaking for them.

GSF

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Author: MetroChick Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418939 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 1:30 PM
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No, simply that the contract needs to be more clearly written. And the unfortunate part is that the law permitted such a delay. Something else that should be part of the consideration in the contract.

Contracts do not mean people can't break contracts - it just means they might face financial issues (by being sued for breach of contract) if they break a contract.

In a perfect surrogacy scenario, both parties would spell out how they would handle a fetus with severe medical issues, and surrogates who would not want an abortion would not get paired up with couples who do not want to bring a child into the world with severe medical issues.

However, should the parties disagree and not be able to fulfill their agreement during a pregnancy if a severe medical issue is determined with the fetus - I think the surrogate's right to her body and decision whether to have an abortion should trump the couple's right to impose an abortion on their surrogate. And this should be spelled out in the contract. And that way a couple knows going into it best attempts are made to pair them up with a surrogate who would not bring a child with medical issues into the world, but ultimatly that could happen and is a "known" risk with surrogacy, and while they woudln't be financially responsible for that child, if they don't want the risk of a child with severe medical issues being brought into the world - then they shouldn't attempt surrogacy.

If you use a surrogate, you have to accept you're handing over control over specific areas.

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Author: MetroChick Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418941 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 1:38 PM
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And it should be the choice the parents get to make. That she was able to legally interfere with it really bothers me, especially because they were taking such steps to try to make sure it didn't happen to this child. It's got to be heartbreaking for them.

Who are the parents? Are the parents the surrogate who is carrying the pregnancy? Is the parent the woman who donated the egg and the male of the couple if he was the sperm donor? Or are the parents the couple - the woman having no real biological definition of "parent" during the pregnancy - and whose only claim to "parenthood" will be through contracts and laws? There are no "standard" parents to the fetus - there are just legal wards - and during the pregnancy the surrogate is the legal ward.

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Author: GardenStateFool Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418946 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 2:02 PM
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Who are the parents? Are the parents the surrogate who is carrying the pregnancy? Is the parent the woman who donated the egg and the male of the couple if he was the sperm donor? Or are the parents the couple - the woman having no real biological definition of "parent" during the pregnancy - and whose only claim to "parenthood" will be through contracts and laws? There are no "standard" parents to the fetus - there are just legal wards - and during the pregnancy the surrogate is the legal ward.

That's the problem. The contract was undertaken in a state where they parents were the people who had contracted with the surrogate - NOT the surrogate. She decided to do an end run by going to a state where the rules were different and sided with her.

That's part of the complexity, where the states have these patchwork of laws that are sometimes mutually exclusive of one another.

GSF

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Author: sofaking6 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418949 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 2:05 PM
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It needs to be spelled out exactly what is being agreed to. Including the idea that for reasons x, y, and z, if termination is determined to the most appropriate course of action, then that's what happens (with and agreed-upon fee for time already spent, etc.).

In this case, it was already there and she didn't adhere to what was spelled out. That's a real problem.


Would she still be held to the terms of the contract in another state? i.e. if the contract said that any decision by her which breached the terms including leaving the state in order to claim parental rights, would she have had to give the money back?

6

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Author: GardenStateFool Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418950 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 2:11 PM
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Would she still be held to the terms of the contract in another state? i.e. if the contract said that any decision by her which breached the terms including leaving the state in order to claim parental rights, would she have had to give the money back?

I don't know... that's why it seems to me that this case could almost be someone's thesis or something. There are so many layers to this.

Until this, who would have actually anticipated that someone would do such a thing? Especially when it was already in the contract that the parents could ask for a termination based on certain circumstances... the surrogate seemed to think that such a thing would never been necessary, and apparently the parents/whoever wrote the contract seemed to think that her refusing that if it came to it would never happen either.

Of course, if the other state simply grants the surrogate the rights of a parent, at that point, would the contract even matter? Who knows?

It's almost like a deal with the devil, the way we have this legislated at the moment. Can you write something so ironclad that this would ever have worked out?

GSF

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Author: sofaking6 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418951 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 2:22 PM
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It's almost like a deal with the devil, the way we have this legislated at the moment. Can you write something so ironclad that this would ever have worked out?

Well, I guess since it is a civil contract, there is no way to make it ironclad as far as making sure everyone gets what they signed up for, BUT it should be feasible at least to make sure that if one party backs out they ARE held in breach.

I have to agree though that those lawyers sounded like boobies.

6

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Author: GardenStateFool Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418958 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 3:36 PM
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Here's another article on the topic, one which, when I think through it, I heartily disagree with:

http://www.cnn.com/2013/03/06/opinion/oconnor-surrogate-abor...

The problem stems from our conflicted understanding of what we mean when we say a woman has the right to choose what she does with her body.
A woman's right to choose is, of course, the founding principle of the pro-choice movement and its valiant campaign to keep abortion safe and legal -- no matter, for now, that the legality of abortion mostly rests on physician-patient privacy.

----------------------------------------

It is a simple matter of justice: The right to choose goes a long way toward ensuring equal rights and opportunities for women. Turning pregnancy into work that can be bought and sold radically undermines that right. If we have any pretensions about defending a woman's right to choose, then we must defend that right even when, like Kelley, she chooses to change her mind. Even when, like Kelley, her reasoning doesn't always seem consistent.

The alternative is that women's bodies can be packaged up like any other consumer good and sold off to the highest bidder.


I'm not entirely sure where we get this logical leap.

And I definitely don't agree with it. And reading the comments under that article has now made my head spin enough that I'm not even sure I can be coherent in explaining why!!!

GSF

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418961 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 4:11 PM
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I'm not entirely sure where we get this logical leap.

And I definitely don't agree with it. And reading the comments under that article has now made my head spin enough that I'm not even sure I can be coherent in explaining why!!!


I think I might help. One key concept is that not all remedies are available in a contract dispute.

The most common remedy for breach of contract is money damages. Courts can also order specific performance of an obligation where appropriate. If, for example, I have agreed to sell a piece of property and try to back out of the contract, the court can order that title be transferred to my buyer. Courts can also impose injunctive relief - they can order that I refrain from doing something if I have agreed to it in a contract.

However, a longstanding rule is that courts will not order specific performance of personal services. If I contract with you that I will personally paint your house, and try to breach the contract, a court might order me to pay you money damanges. The court might order that you can get a third party to paint the house, and I have to pay them. But they will not order me to go to your house and paint it. The concern is that such an order would violate the Thirteenth Amendment, and constitute involuntary servitude:

http://contracts.uslegal.com/breach-and-remedies/specific-pe...

So, while it is clear that the surrogate had a legally binding obligation to get an abortion, there is no way that a court would have ever forced her to do it - it would have provided some other remedy for the breach. She's clearly doing something wrong by not honoring her agreement, but it would be wrong for the court to force her to have the abortion as a remedy, in lieu of some other order.

Albaby

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Author: 1poorguy Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418963 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 4:18 PM
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She's clearly doing something wrong by not honoring her agreement, but it would be wrong for the court to force her to have the abortion as a remedy, in lieu of some other order.

Can you explain how this would differ from providing a blood sample for a DUI test? I know the police can get a court order to force you to submit. How is a court order to get the legally-contracted abortion different (in the eyes of the law)?

1poorguy

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Author: MetroChick Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418967 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 4:45 PM
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That's the problem. The contract was undertaken in a state where they parents were the people who had contracted with the surrogate - NOT the surrogate. She decided to do an end run by going to a state where the rules were different and sided with her.

I would have a bigger problem with a state that could force someone to have an abortion - versus just breaking the contract they've signed. I think breaking a contract (and dealing with any financial liability due to that) is a human right versus being physically forced to comply with said contract.

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418971 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 4:50 PM
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Can you explain how this would differ from providing a blood sample for a DUI test? I know the police can get a court order to force you to submit. How is a court order to get the legally-contracted abortion different (in the eyes of the law)?

Because criminal law is different. If they get a warrant, they can arrest you and hold you in jail pending a bail hearing - the Thirteenth Amendment doesn't prohibit them from taking actions in pursuit of criminal charges, provided that they comply with the Fourth.

Albaby

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Author: sofaking6 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418972 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 5:12 PM
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A tempting view, but one which insists that you equate being pregnant with any other type of work, from shelf-stacking to brain surgery. This is, of course, nonsense. Pregnancy is something that only happens to women. The whole reason that we embrace the ethical principle of the right to choose is that it goes some way to ensuring that a woman's biology does not come to define her life in a way that would never happen to men.

Yeah I don't agree with this.

What it really says is that if we say that a woman has a right to do with her uterus as she pleases, then she has the right to transfer that right to someone else.

Also, I think the owner of that opinion is confusing criminal law with civil law. If a woman can get out of a contract just because it involves her uterus, then you could conceivably say the same about any contract involving any part of anyone's body.

6

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Author: sofaking6 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418973 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 5:35 PM
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I would have a bigger problem with a state that could force someone to have an abortion - versus just breaking the contract they've signed. I think breaking a contract (and dealing with any financial liability due to that) is a human right versus being physically forced to comply with said contract.

Agreed. You have the right to break a contract and the law can inflict penalties for that.

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Author: 1poorguy Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418977 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 6:09 PM
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But how would the 13th apply if a court ordered the woman to comply with the contract and get an abortion? There's no servitude there that I can see (except in favor of the fetus, but you argued last year that doesn't count).

1poorguy (I get it's different between civil and criminal, but I don't see the Constitutional issue in this particular case.)

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Author: sano Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418978 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 6:22 PM
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I would have a bigger problem with a state that could force someone to have an abortion - versus just breaking the contract they've signed

What if it was your and your husbands egg and sperm - your very flesh and blood - the surrogate was incubating for you, then you find out it's a tragically flawed embryo/fetus and you don't want it to suffer for a heartbreaking decade?

Do you really want that surrogate to have the final say-so as to the disposition of your DNA bearing offspring? Yours - not hers.

The surrogate is dictating to you that she is going to force your fetus to come to full term and suffer incredibly difficult/painful surgical procedures for who-knows-how-long, before it dies.

I wonder, metrochick, if you would willingly let someone else subject your fetus to that.

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Subject: Re: Complicated Surrogacy Date: 3/6/2013 6:46 PM
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What it really says is that if we say that a woman has a right to do with her uterus as she pleases, then she has the right to transfer that right to someone else.

If a couple hires a woman to incubate their embryo/fetus, and terminate it if they don't approve of the way it's growing, and she runs off with their property, how is that not theft (or worse)?

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Author: sofaking6 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418981 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 6:56 PM
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If a couple hires a woman to incubate their embryo/fetus, and terminate it if they don't approve of the way it's growing, and she runs off with their property, how is that not theft (or worse)?

Who owns a fetus? Is it property? Does that make HER property, since the fetus can't survive without her?

What if the couple changes their mind? Say, one of them dies while the surrogate is pregnant and the other doesn't feel they can care for a child. Say the fetus is perfectly healthy and 6 months along..do they have the right to force her to terminate it? Do they have the right to force her to travel to a state that would allow a later-term abortion?


Lots of interesting questions,
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Author: sano Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418987 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 8:45 PM
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Who owns a fetus?

The biological parents.

Is it property?

Sure. It's the property of the people who contracted for it's incubation. They bought it, they rented an incubator for it.... it's theirs unless they sell or otherwise dispose of it.

Does that make HER property, since the fetus can't survive without her?

Nope. I'd imagine there was a clause that allowed the incubator to terminate the pregnancy if her health was in danger, just as there was a clause permitting the owners of the fetus to order it's termination if it was seriously faulty.

What if the couple changes their mind? Say, one of them dies while the surrogate is pregnant and the other doesn't feel they can care for a child.

If it was addressed in the contract, refer to the clause.

Say the fetus is perfectly healthy and 6 months along..do they have the right to force her to terminate it?

Again, refer to the contract. It dealt specifically with a faulty fetus.

Do they have the right to force her to travel to a state that would allow a later-term abortion?

Again, refer to the original contract. Did it specify one way or another?

This is one of those life-events for which a comprehensive contract drawn up by competent experienced attorneys is invaluable.

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Author: sano Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418988 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 8:51 PM
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Who owns a fetus?

The biological parents.


Correction: the people who made or bought the embryo and paid for it's insertion into the incubator are the owners of the resulting fetus. They might be the biological parents, or simply purchasers of eggs and sperm.

Can they sell it to another couple before it becomes a person?

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Author: GardenStateFool Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418990 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 9:17 PM
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I would have a bigger problem with a state that could force someone to have an abortion - versus just breaking the contract they've signed. I think breaking a contract (and dealing with any financial liability due to that) is a human right versus being physically forced to comply with said contract.

So... you can sign the contract, but you can't keep the contract.

How does that work?

Also, how does it work when she brings the baby to term? Who pays for that? Who pays for the care of the child? Whose child does it become?

Does she get to sue for child support, as she would if she ended up getting pregnant with someone's child?

GSF

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418991 of 445690
Subject: Re: Complicated Surrogacy Date: 3/6/2013 10:34 PM
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But how would the 13th apply if a court ordered the woman to comply with the contract and get an abortion? There's no servitude there that I can see (except in favor of the fetus, but you argued last year that doesn't count).

I'm not sure the 13th would apply - a court might actually be able to order that and have it be upheld. But they wouldn't, in all likelihood. Concerns about the 13th have led the courts to adopt a general rule that specific performance is not an available remedy in personal services contracts. Not only that, but courts are generally more reluctant to issue "positive" injunctive relief - ordering someone to do something, rather than ordering them to refrain from doing something - in most cases. The reasons for that are, I think, the same ones that underlie the queasiness that people are expressing in this instance. We can recognize that someone has done something wrong to another party, and must compensate them in some way, but be very skittish about taking away their personal autonomy rather than socking them with a financial penalty.

Albaby

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Author: sano Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418996 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 9:29 AM
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Not only that, but courts are generally more reluctant to issue "positive" injunctive relief - ordering someone to do something, rather than ordering them to refrain from doing something - in most cases.

One could argue that the injunction would be to refrain from further incubation of the fetus of another.

Whether the fetus is removed from the incubator at 5 months or 9 months, it is supposed to be returned to the customers.


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Author: MetroChick Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418997 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 9:47 AM
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1poorguy (I get it's different between civil and criminal, but I don't see the Constitutional issue in this particular case.)

A court order for a blood sample only holds you legally required to give that sample - it doesn't mean they can hold you down and take the sample. You do have the right to not comply with the order - in which case you'll probably be held in jail for a day or 2 for contempt, in which time you'll sober up making the blood sample worthless.

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Author: MetroChick Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418998 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 9:52 AM
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What if it was your and your husbands egg and sperm - your very flesh and blood - the surrogate was incubating for you, then you find out it's a tragically flawed embryo/fetus and you don't want it to suffer for a heartbreaking decade?

As I've posted before in this thread - when you give up carrying the pregnancy yourself and give it to another person - whether your DNA or not in the fetus - you're giving up rights to ultimately control that pregnancy - as the one who is pregnant has ultimate control. So it's a "known" risk going in when persuing surrogacy.

So, if I wanted to be 100% sure I didn't play a part in bringing a child into the world with health issues - than I wouldn't choose surrogacy if nature decided I couldn't carry a pregnancy and I would see alternatives, such as adoption if I wanted so badly to raise a child but only a physically healthy one.

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 418999 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 9:54 AM
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One could argue that the injunction would be to refrain from further incubation of the fetus of another.

Whether the fetus is removed from the incubator at 5 months or 9 months, it is supposed to be returned to the customers.


With a little creativity, you could reframe most positive injunctions as a negative injunction ("You must refrain from doing anything at 9:00 a.m. tomorrow morning except painting Albaby's house"). But I think most judges would regard ordering someone to get an abortion as a positive injunction, not a negative one. You are requiring the party to undertake an affirmative act, not refrain from doing one.

Albaby

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Author: MetroChick Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419000 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 9:59 AM
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So... you can sign the contract, but you can't keep the contract.

Do you (or any of us) have the right to sign and break contracts today? All the other person can do is sue for damages, they cannot force you to physically comply with a contract.

Also, how does it work when she brings the baby to term? Who pays for that? Who pays for the care of the child? Whose child does it become?

Same as any other unwanted baby - it goes up for adoption or becomes a ward of the state if no one wants it.

Does she get to sue for child support, as she would if she ended up getting pregnant with someone's child?

She could sue for child support (since anyone can sue someone else for anything) but the contract and effort of the other couple who asked she abort it would probably be enough to fee them of any financial obligations to the child.

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Author: sano Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419001 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 10:25 AM
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As I've posted before in this thread - when you give up carrying the pregnancy yourself and give it to another person - whether your DNA or not in the fetus - .

Creating the contract is a fairly dispassionate process. Inserting the embryo is a fairly clinical, dispassionate process.

you're giving up rights to ultimately control that pregnancy - as the one who is pregnant has ultimate control

All of a sudden the incubator becomes entitled to be a passionate player? What if the incubator starts smoking crack upon receiving her monthly stipends?

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Author: sano Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419002 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 10:34 AM
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With a little creativity, you could reframe most positive injunctions as a negative injunction ("You must refrain from doing anything at 9:00 a.m. tomorrow morning except painting Albaby's house")

Inserting the word "except" into your retort changes the nature of the injunction from not doing something to doing something.

In the case of the fetus, it will be removed from the incubator at some point. The only variable is 'when.' An injunction to 'cease and desist' only changes the time frame, not the outcome.

By the way, is there a legal term for the woman who contracted the surrogate besides 'customer?' Surrogatee?

..and I wonder how the case evolves of the donor who is being sued by the state for the medical costs of the baby borne by a divorced lesbian who purchased his sperm.

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419004 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 10:42 AM
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In the case of the fetus, it will be removed from the incubator at some point. The only variable is 'when.' An injunction to 'cease and desist' only changes the time frame, not the outcome.

Indeed, but since "ceasing and desisting" requires an affirmative action by the pregnant woman, rather than refraining from undertaking an action in the future, it would almost certainly be regarded as a positive injunction. The injunction disturbs - rather than preserves - the status quo.

Albaby

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Author: sano Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419006 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 11:15 AM
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. The injunction disturbs - rather than preserves - the status quo.

Inasmuch as the status quo involves numerous elements (property rights, contingency clauses regulating performance, etc) , it would, I believe, depend on how the court defines the status quo.

The surrogate should comply with all of the customers contractual clauses and the court should enforce the contract.

To deny any and all rights of the paying customer makes any and all surrogacy contracts relatively meaningless if contingency clauses have no teeth.

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419008 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 11:27 AM
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To deny any and all rights of the paying customer makes any and all surrogacy contracts relatively meaningless if contingency clauses have no teeth.

It doesn't deny the rights of the paying customer - it limits the remedies. This is true of almost all personal services contracts. A professional athlete can sign a six-year deal - but if he wants to quit the game after three years, no court is going to force him to go back to work. There can be other penatlies and sanctions, but they will not require him to affirmatively perform a personal service.

Again, this is why I think this question is a complicated one. We don't want the pregnant woman to be able to break her word, or for the other parties (who have done nothing wrong) to suffer for it. But we are also uncomfortable with the preganant woman being forced to undergo a medical procedure she doesn't want to have. It's hard to reconcile those two sides.

Albaby

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Author: 1poorguy Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419009 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 11:38 AM
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OK. Certainly that makes sense in the case of a house painter (your earlier example). This just strikes me as "different".

Do you think the incubation of the embryo could constitute a bailment? If so, could she not be compelled to surrender the embryo on demand (regardless of the condition of the embryo/fetus)?

1poorguy

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419010 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 11:45 AM
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Do you think the incubation of the embryo could constitute a bailment? If so, could she not be compelled to surrender the embryo on demand (regardless of the condition of the embryo/fetus)?

No. I doubt that the embryo would be considered a chattel (in which property rights inhere) for purposes of creating a bailment in the first place - but again, because "surrendering" the embryo requires a medical procedure to be performed on the pregnant woman's body, I think it highly unlikely that a court would be willing to override her personal autonomy by ordering it.

Albaby

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Author: 1poorguy Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419014 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 12:07 PM
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Indeed, but since "ceasing and desisting" requires an affirmative action by the pregnant woman, rather than refraining from undertaking an action in the future,...

I'm no lawyer but even I can do this one.

"It is ordered that the defendant refrain from giving birth to this fetus."

QED.

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419034 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 1:27 PM
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"It is ordered that the defendant refrain from giving birth to this fetus."

As I said upthread, any positive injunction can (with creativity) be reframed as a negative one. "Defendant is ordered to refrain from having two kidneys" is framed as a negative injunction, but it is an order to have a kidney removed - a positive act.

At bottom, the courts will look at what they are actually doing. Here, they would be ordering the defendant to have a medical procedure that she does not want to have in order to enforce a contract. The courts simply aren't going to use that as a remedy.

Albaby

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Author: 1poorguy Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419036 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 1:54 PM
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The courts simply aren't going to use that as a remedy.

Just to clarify...

...they CANNOT, or they WILL NOT?? If the latter, are there any circumstances when they would?

Even ordering the paying of restitution of some form is a "positive act".

1poorguy

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Author: MetroChick Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419038 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 2:04 PM
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All of a sudden the incubator becomes entitled to be a passionate player? What if the incubator starts smoking crack upon receiving her monthly stipends?

It's not an "incubator" it's a person - and therefore you can not treat the "renting" of someone the same as renting out physical property. Does your employer own your body for 8 hours Mon-Fri, simply because they're renting your time?

If a surrogate starts to do something illegal, one can have her arrested for illegal behavior. But if she's doing something legal that the couple doesn't like - there isn't much they can do about that. If it breaks part of the contract than they can seek fincial restitution - but simply having a contract does not mean one can physically be held to said contract.

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419040 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 2:08 PM
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Just to clarify...

...they CANNOT, or they WILL NOT?? If the latter, are there any circumstances when they would?

Even ordering the paying of restitution of some form is a "positive act".


Indeed - but that's why I prefaced (up top) that this type of specific performance relief is not available for personal services contracts. Payment of money damages is another thing entirely, simply by accident of history: the English system had separate courts for law (which could award money damages) and equity (which could order people to act or refrain from acting). In our current system, a single court exercises the powers of both law and equity (in most states), but even though merged we recognize a distinction in how the court exercises those powers.

Courts will frequent order parties to do things - convey real estate, return a chattel, stop using someone's image without a license, tear down a fence - using their equitable powers. Where they (usually) draw the line is when that remedy crosses into personal services and other areas that implicate personal autonomy.

Albaby

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Author: sano Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419041 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 2:14 PM
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Here, they would be ordering the defendant to have a medical procedure that she does not want to have in order to enforce a contract.

Yeah, but she contracted to give up the fetus. One way or another, she has to go into that hospital for a medical procedure and release it. Only thing changing is the time frame.

What if she refused to go to the hospital at the normal gestation time, declaring she wants to go solo sailing and give birth at sea, or hiking into the mountains and do a solo cave girl birth scenario?

If you were the judge, is there a point at which you would step in and restrain the incubator?

What if she starts smoking crack with that first monthly payment?

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Author: 1poorguy Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419044 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 2:28 PM
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Does your employer own your body for 8 hours Mon-Fri, simply because they're renting your time?

Yeah, pretty much. And they have a very powerful coercive tool, too. "YOU'RE FIRED!".

This couple doesn't appear to have had any tools at their disposal at all since courts are unwilling (or unable) to enforce positive actions even if contractually agreed upon.

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Subject: Re: Complicated Surrogacy Date: 3/7/2013 2:36 PM
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Does your employer own your body for 8 hours Mon-Fri, simply because they're renting your time?

Nope.

But one owns the fetus one bought and placed in the incubators body. That was in the contract. Premature removal of the fetus, for cause, from the incubators body was also in the contract.

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Subject: Re: Complicated Surrogacy Date: 3/7/2013 2:43 PM
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Where they (usually) draw the line is when that remedy crosses into personal services and other areas that implicate personal autonomy.

But this isn't simply personal service. There is property involved.

If I hire you to drive my car to NewYork, and the OnStar indicates you are speeeding, taking side-trips, abusing the vehicle in violation of the contract, cannot I order you to park my vehicle on the spot?

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Subject: Re: Complicated Surrogacy Date: 3/7/2013 2:45 PM
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Yeah, but she contracted to give up the fetus. One way or another, she has to go into that hospital for a medical procedure and release it. Only thing changing is the time frame.

What if she refused to go to the hospital at the normal gestation time, declaring she wants to go solo sailing and give birth at sea, or hiking into the mountains and do a solo cave girl birth scenario?

If you were the judge, is there a point at which you would step in and restrain the incubator?


Never. She's not an incubator, she's a person - and has the same rights to self-determination, personal autonomy and privacy, and (perhaps most importantly) control over her body that give rise to the right to abortion in the first place. These types of decisions are between the woman, her doctor, and her conscience - not to be bargained away by contract.

What if she starts smoking crack with that first monthly payment?

Since smoking crack is illegal, it's more a matter for the criminal authorities.

Albaby

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Subject: Re: Complicated Surrogacy Date: 3/7/2013 2:52 PM
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She's not an incubator, she's a person - and has the same rights to self-determination, personal autonomy and privacy, and (perhaps most importantly) control over her body that give rise to the right to abortion in the first place.

She's is a person they hired to be an incubator. If mechanical incubators are perfected she's SOL. That $22Large she pocketed is going to Incubator Inc.

If you are correct then no surrogacy contract is worth the paper on which it's written.

The customers are just rolling dice hoping the surrogate human performs to specs.

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Subject: Re: Complicated Surrogacy Date: 3/7/2013 2:54 PM
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But this isn't simply personal service. There is property involved.

If I hire you to drive my car to NewYork, and the OnStar indicates you are speeeding, taking side-trips, abusing the vehicle in violation of the contract, cannot I order you to park my vehicle on the spot?


Sure - but terminating a personal service is different than requiring one. I can order you to stop driving the vehicle if you're breaching the terms of the contract - but I can't order to you to start driving it again if you quit in violation of the contract.

That's why this is a complicated situation - because a court would be seriously imposing on a woman's autonomy if it order her to have an abortion if she wants one, just as if it ordered her not to have an abortion if she wanted one.

As for the property claim, I'm not sure that the courts are really ready to use their equity powers to determine whether a fetus is chattel property that is "owned" by anyone - especially in this context.

Albaby

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419052 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 2:58 PM
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If you are correct then no surrogacy contract is worth the paper on which it's written.

The customers are just rolling dice hoping the surrogate human performs to specs.


As are almost all labor contracts, at least in terms of getting the secured labor. You can hire someone for a job, but if they quit, you're never going to get a court to compel them to come back to work.

Let's reverse this a little bit. Do you think that a court should have the ability to prevent a surrogate from having an abortion (that she would otherwise be legally permitted to have), if she has contracted not to?

Albaby

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Author: 1poorguy Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419054 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 3:13 PM
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Do you think that a court should have the ability to prevent a surrogate from having an abortion (that she would otherwise be legally permitted to have), if she has contracted not to?

Yes. If she signed the contract of her own free will, and it was stipulated in the contract, and her health is not in danger in any way, then yes.

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Subject: Re: Complicated Surrogacy Date: 3/7/2013 3:33 PM
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No. I doubt that the embryo would be considered a chattel (in which property rights inhere) for purposes of creating a bailment in the first place - ...

You didn't really address the "cannot" versus "will not" question, but anyway...

How would it differ if everything had gone to plan? Healthy fetus carried to term and delivered (a medical procedure, in general). Contract says she has to give up the newborn. Would a court not enforce that? If the court does, are they not saying the baby belongs with the fertility-challenged couple, in effect that they own it (since it was their embryos that started the whole process...pretty sure they would be regarded as the owners if someone tried to steal them)?

Why is that significantly different (in this case) to demanding (and awarding) the turning-over of the embryo/fetus a few months earlier? Either way the court is compelling a positive action (the turning over of the embryo/fetus/baby - looks like a bailment to me!), and either way a medical procedure is going to be involved. (Unlike your kidney example where a medical procedure is not inevitable regardless of whether the court issues an order.)

1poorguy

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419057 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 3:53 PM
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You didn't really address the "cannot" versus "will not" question, but anyway...

Sorry - missed that. But I don't know the outer boundaries of equity power, and they might vary from state-to-state. There is a very real constitutional question of whether a court order requiring her to get an abortion would be consistent with Roe v. Wade, which establishes very broadly a woman's autonomy over those types of reproductive choices. But again, I don't know that how that question would be resolved.

How would it differ if everything had gone to plan? Healthy fetus carried to term and delivered (a medical procedure, in general). Contract says she has to give up the newborn. Would a court not enforce that? If the court does, are they not saying the baby belongs with the fertility-challenged couple, in effect that they own it (since it was their embryos that started the whole process...pretty sure they would be regarded as the owners if someone tried to steal them)?

I imagine that the law on that varies considerably from state to state. Here in Florida, these types of things are considered "pre-planned adoptions," and any such transfer of parental custody has to be approved by a court as with any other adoption - not conclusively by private parties under an agreement:

http://www.flsenate.gov/Laws/Statutes/2012/63.213

Custody is different than ownership, and I can't imagine a court ever saying that the relationship between parent/custodian/guardian and child was ever one of ownership.

Why is that significantly different (in this case) to demanding (and awarding) the turning-over of the embryo/fetus a few months earlier? Either way the court is compelling a positive action (the turning over of the embryo/fetus/baby - looks like a bailment to me!), and either way a medical procedure is going to be involved. (Unlike your kidney example where a medical procedure is not inevitable regardless of whether the court issues an order.)

As noted above, the former is a matter of child custody, while the latter is not (at least in Florida). As for the latter, it's a different medical procedure, and that's not the type of personal choice that courts use their injunctive power to compel.

Albaby

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Author: Hawkwin Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419061 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 4:28 PM
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Let's reverse this a little bit. Do you think that a court should have the ability to prevent a surrogate from having an abortion (that she would otherwise be legally permitted to have), if she has contracted not to?

That was the first question that came to me when I started reading this thread.

What possible legal "remedy" would there be in a contract dispute where the surrogate wants to terminate - at her on whim - against the wishes of the parents?

Would jail her until delivery? Would we allow her to do it then subject her to fines and penalties?

If she cannot be stopped from termination, is there a parent on this board than can name an appropriate remedy for someone doing that to your fetus?

Ugh!

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Subject: Re: Complicated Surrogacy Date: 3/7/2013 5:53 PM
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Sure - but terminating a personal service is different than requiring one.

Both situations involve terminating a personal service and the return of something before the contracted service is completed.

That's why this is a complicated situation - because a court would be seriously imposing on a woman's autonomy if it order her to have an abortion if she wants one

The woman's autonomy would not be imposed on if she agreed to abort a seriously faulty fetus. She agreed to that contingency with sound mind, no coercion.

It's not much different than me saying, 'to hell with you, I agreed to drive your Bugatti to New York and I'm not stopping even if the engine starts rattling and smoking.'

It is a complicated situation. Brings the Terry Schiavo mess to mind; ordering the tubes to be removed, then staying the order.

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Subject: Re: Complicated Surrogacy Date: 3/7/2013 5:57 PM
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Do you think that a court should have the ability to prevent a surrogate from having an abortion (that she would otherwise be legally permitted to have), if she has contracted not to?

It would depend on the terms of the contract.

Sounds like a superb avenue for extortion if there's no downside to violating the contract.

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Subject: Re: Complicated Surrogacy Date: 3/7/2013 6:17 PM
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There is a very real constitutional question of whether a court order requiring her to get an abortion would be consistent with Roe v. Wade, which establishes very broadly a woman's autonomy over those types of reproductive choices.

Looking at Roe v Wade and the related cases on wiki, none contemplated the situation of a professional surrogate who agreed to abort a seriously defective fetus.

The professional breeder did not forfeit her autonomy against her will; she signed it away, then breached the agreement.

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Subject: Re: Complicated Surrogacy Date: 3/7/2013 6:23 PM
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What possible legal "remedy" would there be in a contract dispute where the surrogate wants to terminate - at her on whim - against the wishes of the parents?

... how about if the surrogate starts to smoke and drink heavily with her monthly stipends, subjecting the fetus to fetal alcohol syndrome.... or having all kinds of unprotected sex, subjecting the fetus to the risk of HIV ?

Is the surrogate allowed absolute autonomy despite her contract and the will of the parties that hired her?



http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001909/

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419070 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 6:24 PM
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Both situations involve terminating a personal service and the return of something before the contracted service is completed.

Only at a really high level of abstraction, though. More concretely, one involves requiring an individual to undergo a medical procedure in order to end the personal service, while the other requires merely stepping out of a car. That matters.

The woman's autonomy would not be imposed on if she agreed to abort a seriously faulty fetus. She agreed to that contingency with sound mind, no coercion.

It's not much different than me saying, 'to hell with you, I agreed to drive your Bugatti to New York and I'm not stopping even if the engine starts rattling and smoking.'


Again, not really. The both the breach and the remedy in each case are far more serious. Both the prospective parents and the pregnant woman are much more directly impacted than in the car situation.

BTW, it isn't entirely clear that the prospective parents "own" the fetus in the same way that I own my Bugatti (BTW, I want my hypothetical Bugatti in Indigo Blue, please), either. I'm not sure a fetus can be "owned" as property, and parties can't decide to allow something to be "owned" by one or the other as property by contract. Creating an ownership interest merely by virtue of contributing genetic material would be really dangerous precedent that could support women having to get consent from the fathers to get an abortion (with that bailment comes a duty of care, to borrow 1pg's approach briefly).

Albaby

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Subject: Re: Complicated Surrogacy Date: 3/7/2013 6:36 PM
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Looking at Roe v Wade and the related cases on wiki, none contemplated the situation of a professional surrogate who agreed to abort a seriously defective fetus.

The professional breeder did not forfeit her autonomy against her will; she signed it away, then breached the agreement.


Indeed - and the other parties have remedies against her for breaching the agreement. The question isn't whether breach has occured, or whether relief should be granted to the other parties. Rather, it's whether that relief should include requiring the pregnant woman to get an abortion against her will. That type of specific performance in an intensely personal situation is not something the courts order.

Roe v. Wade establishes that a woman's control over the decision whether or not to have an abortion is included within the right to privacy inherent in the liberty protected by the Constitution. Quoting Roe:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.

Note that the right protected by Roe is symmetric - the woman's right to make the decision is what is protected, whether it is a decision to terminate or to continue her pregnancy. The State can no more force a woman to have an abortion without affecting that right than it can prevent a woman from having an abortion (though the balance of competing interests that inheres in most constitutional analyses might be different).

It is a difficult dilemma, but we should be troubled by a court deciding what a woman can or cannot do with her womb - no matter the context. And that's different than a court deciding what a person can or cannot do with their Bugatti.

Albaby

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Author: sano Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419074 of 445690
Subject: Re: Complicated Surrogacy Date: 3/7/2013 7:06 PM
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More concretely, one involves requiring an individual to undergo a medical procedure in order to end the personal service,

But as 1pg observed, a medical procedure is going to happen no matter what. It's just a matter of when.

It's complicated. No doubt about it...so I'm done with it AND you get your blue Bugatti.

Fast forward to 04:30 unless you want to see the Lambo go up against the McClaren to really appreciate what the Veyron achieves.

http://www.youtube.com/watch?v=2fxrSPMjs9M

Oh sigh!!!

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Subject: Re: Complicated Surrogacy Date: 3/7/2013 9:35 PM
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The professional breeder did not forfeit her autonomy against her will; she signed it away, then breached the agreement.

I agree. However, if the incubator chooses to terminate, it occurs to me that stopping her would violate the 13th. I believe the Amendment includes those who voluntarily sign away their freedom to serve another, which this would be.

But it is not clear to me that the reverse applies (i.e. this case when the renters wanted the termination). Rather, then, we have to get around Albaby's argument.

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Subject: Re: Complicated Surrogacy Date: 3/8/2013 9:33 AM
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That was in the contract.

And just because something's in a contract does not mean it's legally enforceable. 2 parties can put anything they want in a contract. If one party doesn't fulfill the contract - than it's up to the courts to decide whether the contract has any legal claims that bind the 2 parties to one another.

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Subject: Re: Complicated Surrogacy Date: 3/8/2013 9:46 AM
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How would it differ if everything had gone to plan? Healthy fetus carried to term and delivered (a medical procedure, in general). Contract says she has to give up the newborn. Would a court not enforce that? If the court does, are they not saying the baby belongs with the fertility-challenged couple, in effect that they own it (since it was their embryos that started the whole process...pretty sure they would be regarded as the owners if someone tried to steal them)?

Why is that significantly different (in this case) to demanding (and awarding) the turning-over of the embryo/fetus a few months earlier? Either way the court is compelling a positive action (the turning over of the embryo/fetus/baby - looks like a bailment to me!), and either way a medical procedure is going to be involved. (Unlike your kidney example where a medical procedure is not inevitable regardless of whether the court issues an order.)


It's different because the couple may "own" (and own really isn't the proper term, since humans are not considered property - just see what happens if you kill someone's dog versus someone's child) the embryo before implantation, and may be the legal parents after birth - but the surrogate "owns" the pregnancy.

During pregnancy, there's no clear diving line between fetus and mother - since nutrients flow from the surrogate to the fetus. She owns the amneotic fluid, she owns the placenta, and she owns her body. Since one cannot get to the fetus without destroying her pregnancy and without subjecting her body to something she may not want to do - she has ultimate decision over whether the pregnancy ends early or whether she wants to wait until nature takes its course.

A contract is signed before implantation happens - so a surrogate can very easily sign a contract to be a surrogate - but then change her mind and decide she doesn't want to go through IVF after all - do you think in that case of breaking a contract a court is going to force her to be implanted?

The existance of the contract only holds the parties to financial liability - it cannot force either party to go through with the stipulations in the contract.

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Subject: Re: Complicated Surrogacy Date: 3/8/2013 9:52 AM
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But as 1pg observed, a medical procedure is going to happen no matter what.

Birth is not "a medical procedure" it's a natural occurrence. It might be aided through the medical industry - but from the OP we don't know if the birth was originally planned to be in a hospital, or at home.

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Subject: Re: Complicated Surrogacy Date: 3/8/2013 11:38 AM
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The problem with your argument is that neither the embryo nor the fetus is a human. So it CAN be owned (at least until such time as it develops into a human, then all bets are off).

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Subject: Re: Complicated Surrogacy Date: 3/8/2013 11:42 AM
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The problem with your argument is that neither the embryo nor the fetus is a human. So it CAN be owned (at least until such time as it develops into a human, then all bets are off).

So then why did Scott Peterson get convicted of 2 murders when he killed his pregnant wife - a murder charge isn't used for non-humans.

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Subject: Re: Complicated Surrogacy Date: 3/8/2013 11:53 AM
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So then why did Scott Peterson get convicted of 2 murders when he killed his pregnant wife - a murder charge isn't used for non-humans.

Well-meaning, but mis-guided law. Simple as that. The "abortion is murder" crowd loved it, too. (It might even have been a wedge law to set a precedent, I'm not certain.)

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419104 of 445690
Subject: Re: Complicated Surrogacy Date: 3/8/2013 12:12 PM
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The problem with your argument is that neither the embryo nor the fetus is a human. So it CAN be owned (at least until such time as it develops into a human, then all bets are off).

Not trying to perpetuate the thread, but whether something can be "owned" is typically a matter of state property law. Not everything can be owned, and even things that are "owned" in a colloquial way may not have all of the rights that normally inhere to either chattel or real property. For example, you "own" your left arm, but you cannot by contract transfer ownership of it.

Even stipulating that neither the embryo or fetus is not a human, that does not mean that it is a chattel good in which ownership can be conveyed by contract. Nor is it clear who "owns" the embryo or fetus - the donors who contributed the initial genetic matter, or the pregnant woman who has contributed most of the matter that currently composes most of the embryonic or fetal body mass - or neither.

Albaby

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Subject: Re: Complicated Surrogacy Date: 3/8/2013 12:15 PM
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Birth is not "a medical procedure" it's a natural occurrence.....from the OP we don't know if the birth was originally planned to be in a hospital, or at home.

It's a medical procedure. At a minimum, someone has to chew through the cord and knot it so the mom can continue harvesting and the baby doesn't drown in the rice paddy.

My catholic niece/nephew home birth all the time (4 out of 5, if I'm counting right) so they don't have to hire a babysitter. They hire a certified 'midwife' who brings a whole clinic's worth of gear - oxygen, a sterile suite to deal with hemorrhage, meds, etc. Definitely a medical event, even at home.

Google indicates that even with all that, about 40% of home deliveries get transferred to a hospital.

Second, no matter what the original birth plan was, with all of the problems the fetus presented -heart, brain cyst, severe organ deformations - there is no way that birth would be unattended by specialist MD's at a NICU.

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Subject: Re: Complicated Surrogacy Date: 3/8/2013 12:35 PM
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a murder charge isn't used for non-humans.

Sure it is. I get charged with murdering songs all the time.

Seriously, though, whether it's somebodies fetus or prize mallard, if someone kills a living thing you own and want to keep, there can/should be criminal charges brought forth whether it's called murder, slaughter, deprivation of life....

Again - semantics: sometimes we can't live with 'em, sometimes we can't live without them.

parse and punctuate that, AM.

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Subject: Re: Complicated Surrogacy Date: 3/8/2013 12:39 PM
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.... whether something can be "owned" is typically a matter of state property law. Not everything can be owned, and even things that are "owned" in a colloquial way may not have all of the rights that normally inhere to either chattel or real property.

Sigh. Law, can't live with it, can't live without it. We's being hoisted by our own petards.

For example, you "own" your left arm, but you cannot by contract transfer ownership of it.

Is there no place I can sell a kidney for the price of that Bugatti?

If there is such a place, and my kidney is transplanted, and then I tire of the Bugatti, can I demand the return of my kidney?

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Subject: Re: Complicated Surrogacy Date: 3/8/2013 12:52 PM
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Not trying to perpetuate the thread, but whether something can be "owned" is typically a matter of state property law.

Nothing wrong with perpetuating it! It's an interesting legal point, don't you think? Another case of science (and society) advancing beyond what the legal system presently is equipped to handle. The law seems very slow to adapt to new innovation.

For example, you "own" your left arm, but you cannot by contract transfer ownership of it.

I would think I could. Not that anyone could get use of it. What about organs? I can contract to sell my kidney to someone who needs it, yes? (Happens all the time, from what I understand.)

I decided to go look it up to be precise...chattel:
http://legal-dictionary.thefreedictionary.com/chattel

By that definition, the embryo definitely is chattel. So is my kidney, my arm, and arguably the fetus. Granted, neither the arm nor the fetus will be "usable" if they are transferred. But it can be done. And none of those things are a human (even if some have the potential to develop into one).

I do think ownership is clear. If I provide you a seed, you contract with me to plant that seed and grow it, returning it when it flowers, it is my plant. Grown from my seed. Which you agreed to nurture and return. If I demand it before it flowers, assuming the contract doesn't stipulate otherwise, you have to surrender it to me. That you added water and had a nice sunny window ledge to put it on doesn't make it yours. Same thing here. The couple provided an embryo they owned to the woman to incubate for them. At no time was it not theirs. (Also, while not specified anywhere I have seen, I am assuming the original ovum was donated and the donor contractually gave up all rights and claims (and liabilities/responsibilities) to whatever the ovum did or did not produce.)

1poorguy

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419112 of 445690
Subject: Re: Complicated Surrogacy Date: 3/8/2013 12:58 PM
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Is there no place I can sell a kidney for the price of that Bugatti?

If there is such a place, and my kidney is transplanted, and then I tire of the Bugatti, can I demand the return of my kidney?


I don't believe so, in the U.S. Generally, sale of human organs is forbidden - contracts to do so would be unenforceable, and perhaps even criminal. Nor do I think there's anywhere you could donate a kidney and still retain "ownership" of it, such that you could demand that it be returned to you (or destroyed) if you later wanted it back. I don't believe that the parties in this case had the power to create by contract any type of residual ownership or possessory interest in the embryo/fetus that would remain with the donors after transplant, at least under U.S. law (it wouldn't surprise me, though, if there was a state that had unusual laws on that topic).

Outside the U.S.? I bet you could get a good price for a healthy kidney - yours or someone else's - in some of the more....unstructured parts of the world. Probably not the price of a Bugatti, though.

Albaby

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Author: albaby1 Big gold star, 5000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419115 of 445690
Subject: Re: Complicated Surrogacy Date: 3/8/2013 1:08 PM
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What about organs? I can contract to sell my kidney to someone who needs it, yes?

Nope - that's illegal under the 1984 National Organ Transplant Act:

http://en.wikipedia.org/wiki/National_Organ_Transplant_Act_o...

(which I looked up after my last post).

I do think ownership is clear. If I provide you a seed, you contract with me to plant that seed and grow it, returning it when it flowers, it is my plant. Grown from my seed. Which you agreed to nurture and return. If I demand it before it flowers, assuming the contract doesn't stipulate otherwise, you have to surrender it to me. That you added water and had a nice sunny window ledge to put it on doesn't make it yours. Same thing here.

The analogy doesn't hold, because the laws governing human tissue are different than the laws governing seeds. That's the point. You could enter into a contract to sell me a seed, but retain an ownership interest in that seed such that you could demand its return at any time. However, you cannot do that with a kidney or a pint of blood. You simply cannot create that particular ownership interest - once possession is transferred, ownership is transfered.

There is no requirement that property laws allow ownership and possession to be separated in the manner you describe for any particular object. While it is generally the case that parties can contractually split ownership and possession (as with a lease or license), I do not believe that there is any state that would allow you to do that with living tissue after implantation.

Albaby

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Author: sano Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419117 of 445690
Subject: Re: Complicated Surrogacy Date: 3/8/2013 1:15 PM
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While it is generally the case that parties can contractually split ownership and possession (as with a lease or license), I do not believe that there is any state that would allow you to do that with living tissue after implantation.

Well, I guess that shoots down my newest business concept:

BUY HERE, PAY HERE TRANSPLANT ORGANS.

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Author: 0x6a74 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419124 of 445690
Subject: Re: Complicated Surrogacy Date: 3/8/2013 1:45 PM
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So then why did Scott Peterson get convicted of 2 murders when he killed his pregnant wife - a murder charge isn't used for non-humans.

a specific Calif law that gives DA that option


( might have made for an interesting appeal

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Author: 0x6a74 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419125 of 445690
Subject: Re: Complicated Surrogacy Date: 3/8/2013 1:48 PM
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Well-meaning, but mis-guided law. Simple as that. The "abortion is murder" crowd loved it, too. (It might even have been a wedge law to set a precedent, I'm not certain.)


I kind of like the law

and it's written to make it inapplicable to abortion

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Author: 1poorguy Big funky green star, 20000 posts Top Recommended Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419137 of 445690
Subject: Re: Complicated Surrogacy Date: 3/8/2013 6:43 PM
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I kind of like the law

Conceptually, so do I. However, I have a philosophical problem with it in that if I am to be consistent and say a fetus is not a person, then the fetus isn't suddenly a person when something occurs that I don't like (e.g. the murder of a pregnant woman).

I am not familiar with exactly how that law was crafted. I do think it should be a punishable offense to cause the unwanted termination of a wanted fetus. I don't see how I can call that "murder", however, and not call an abortion "murder" also (even allowing that the abortion means it isn't a wanted fetus).

1poorguy

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Author: 0x6a74 Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419138 of 445690
Subject: Re: Complicated Surrogacy Date: 3/8/2013 7:13 PM
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Conceptually, so do I. However, I have a philosophical problem with it in that if I am to be consistent and say a fetus is not a person, then the fetus isn't suddenly a person when something occurs that I don't like (e.g. the murder of a pregnant woman).

I am not familiar with exactly how that law was crafted. I do think it should be a punishable offense to cause the unwanted termination of a wanted fetus. I don't see how I can call that "murder", however, and not call an abortion "murder" also (even allowing that the abortion means it isn't a wanted fetus).



didn't call it a person.
iirc, didn't call it anything.

just said (been a while, but i recall looking it up at time of trial) that causing miscarriage against woman's will is felony = manslaughter and can be used as 'special circumstance' (required in Cali for death penalty) at trial for murder of the woman

made me look .... i recalled wrong
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&am...

doesn't call it 'person', does define murder as killing human or fetus.



http://www.ncsl.org/issues-research/health/fetal-homicide-st...

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Author: sano Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 419155 of 445690
Subject: Re: Complicated Surrogacy Date: 3/9/2013 10:22 AM
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I don't see how I can call that "murder", however, and not call an abortion "murder" also (even allowing that the abortion means it isn't a wanted fetus).

Makes a heck of a conundrum for religious people. A substantial percentage of pregnancies miscarry.
"His will be done," they say.
Yet they don't call 'Him" a murderer.


However, I have a philosophical problem with it in that if I am to be consistent and say a fetus is not a person, then the fetus isn't suddenly a person when something occurs that I don't like (e.g. the murder of a pregnant woman).

I can appreciate flexibility at the cost of consistency. If Petersons wife had only been a few weeks pregnant and not shared the news with Scott because maybe she didn't realize either, I doubt 2 charges would have been charged. I'd understand a single murder charge since there were not hopes and expectations dashed by the act of killing the mother to be.

Same deal with imprisoning people for the '3rd strike'. We need flexibility in the 3 strike law.

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