Who decides? Fetal reductions in surrogacy cases

10 September 2015

Debra Wilson 

A story recently reported by Canadian newspapers highlights a major concern with surrogacy: who makes the decisions during the pregnancy?

The immediate response is that the decision is for the pregnant woman to make: her body, her decision. Any other outcome challenges her autonomy over her body, and strengthens the ‘commodification’ argument against surrogacy.

What does she think, though? If she sees herself as helping out the intended parent(s), and carrying a child or children for them, does this mean that she should acquiesce to their wishes? What if the intended parents request an abortion or reduction in the case of multiples? It would still be ultimately her choice, but what are the consequences? The intended parents have a degree of power here. They can refuse to care for the child, or refuse to make whatever payments had previously been agreed upon. Then what? In many countries the surrogate is the legal mother of the child, and any surrogacy agreement is not illegal, but not enforceable. This leaves the surrogate legally responsible for the child(ren) with no financial help from the intended (possibly genetic) parents

Canadian Kari Smith’s decision puts this in context. She agreed to act as a surrogate for another Canadian couple, now living in the Caribbean. Two embryos were successfully implanted, resulting in three children, a singleton and twins. Thrilled, she informed the intended parents, who immediately replied ‘we need to find out about reduction right away’. As Smith comments, ‘they absolutely didn’t want three babies’. The Head of the Agency which introduced Smith and the intended parents agreed with this, remarking that the intended father would ‘rather have no babies than three.’

Smith was informed by a lawyer that under the surrogacy agreement the expense payments could be stopped if she did not agree to the reduction. The agreement had, interestingly, allowed for triplets to be reduced to twins, but Smith commented that ‘she gave the matter little thought’, knowing that only two embryos had been implanted. Doctors had not told her the possibility that one embryo might split, resulting in twins or triplets.

In a difficult and traumatic decision, she agreed to reduction of the singleton. The unthinkable then happened, and one of the twins did not survive.

Why would the intended parents seek reduction? Smith now believes that it was for medical reasons, since there is an increased risk of complications and medical issues with multiple births, particular with triplets. Might there be another, more ‘calculating’ possibility? The reports mention her initial concern, related to immigration. The intended parents were Canadian citizens working in the Caribbean, which has a ‘tightly restricted’ immigration policy. This does not permit foreign workers to bring more than two children into the country. The birth of triplets would have resulted in the intended parents losing their jobs and having to leave the country.

This story serves as a warning to those considering surrogacy, and raises many questions for consideration. The idea of making surrogacy contracts unenforceable is no doubt designed to send a message to society that this kind of contract is morally problematic, as well as to make sure that intended parents cannot control or influence the choices of the surrogate during her pregnancy (anything from forced abortions, to diet/exercise/lifestyle decisions). Smith’s experience suggests that this latter effect can also occur through not making these contracts enforceable. Clearly, more consideration of the legal and moral effects of surrogacy contracts are needed.