If you stop paying a surrogate mother, what happens to the fetus?

Science, technology, and life.
March 24 2009 8:34 AM

Fetal Foreclosure

If you stop paying a surrogate mother, what happens to the fetus?

Pregnant Woman.
If you stop paying a surrogate mother, what happens to the fetus?

If you're angry about the AIG scandal or Bernie Madoff's Ponzi scheme, check out what's happening to the infertile couples and surrogate mothers involved in a California womb brokerage. It's a familiar tale of vanishing funds and defaulted obligations. But this time, the potential loss is bigger than property. It's pregnancy.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

Whose pregnancies are at stake? That's a tricky question. Through in vitro fertilization, a fetus can have two mothers: a genetic one and a gestational one. Last week, for example, we looked at a Japanese case in which a doctor mistakenly put one woman's embryo in another woman's uterus. Weeks later, the second woman was told of the error and aborted the pregnancy. The first woman wasn't told about anything for two and a half months.

That's what can happen when you separate pregnancy into two stages. One woman can abort another's offspring.

And that's not the only way it can happen. Thousands of women have hired themselves out as gestational surrogates. If you're the child's genetic mother, you can put a clause in the contract stipulating under what circumstances the surrogate can abort the pregnancy. But no court will enforce that clause, because you aren't the one who's pregnant. The surrogate is. She can choose abortion unilaterally. All you can do is stop paying her for carrying the child.

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But what if it's the other way around? What if you stop paying her first? If you had hired her to sew booties for your kid, she could respond to your nonpayment by halting work on the booties. But her job wasn't to deliver booties. It was to deliver the kid. If she responds by halting work on the thing you've stopped paying for, that thing is your child.

Presumably, if you care enough about the baby to have hired a surrogate, you'll pay what you promised. But what if you don't control the payments? What if you delivered the money to a broker, and the broker lost, stole, or squandered it? You did your part, but the surrogate is no longer being paid. And she has every legal right to end the pregnancy.

That's the scenario unfolding in California. The victims are couples and surrogates who met through SurroGenesis, a company "dedicated to assisting infertile couples to have a baby through third-party assisted reproduction." Hiring a surrogate through the company is expensive, as you'll see from its long list of fees. But don't worry: The company offers to "arrange for opening of [a] trust account" that will cover your expenses. Specifically, according to the Los Angeles Times, its clients say "SurroGenesis recommended that prospective parents set up trust funds administered by the Michael Charles group," its partner company.

The parents handed over the money. From this, the companies were supposed to pay the surrogates. Now, the Times reports, payments have stopped. In fact, the New York Times adds, "SurroGenesis told clients on March 13 via e-mail that their money was gone. Lawyers say that as much as $2 million may be missing, with some couples losing as much as $90,000."

On one level, this looks like any other financial scandal. But the pregnancies add a whole new dimension. Around 70 people are affected. At least one pregnancy plan was reportedly suspended just before extracting the eggs that were to be used. In two other reported cases, the surrogates are in their third trimester. But what about the pregnancies in the middle—too late to call off the fertilization or implantation but not too late for abortion?

Some couples have managed to pay, out of their own funds, the monthly installments that the companies had promised to the surrogates. But others can't. Andrew Vorzimer, a lawyer involved in the case, says, "We've got couples in the midst of pregnancies with no ability to pay the surrogate."

Surrogates aren't mercenaries. But they do need to be paid for their sacrifices. With every week that passes, they endure more of pregnancy's burdens. They submit to exams, tests, and other procedures. They take on serious medical risks. They forgo activities that might harm the fetus. They lose the ability to commute to and work at other jobs. They have bills to pay. At least one abandoned surrogate says she has received an eviction notice.

If you stop paying your surrogate, she needs to quit and find another job, just like any other worker. But surrogacy isn't like any other job. The only way to quit a pregnancy is to abort it.

Vorzimer says none of the surrogates are quitting. Many "will not be reimbursed for their out-of-pocket expenses lost wages or even have their medical bills paid," he reports, but "every single one of them has committed to moving forward." That's a different attitude from the one at AIG, where undelivered bonuses are regarded as grounds for walking out. But when you're carrying a baby instead of a briefcase, the stakes are that much higher.

Update, March 24: I originally invited readers to contact Vorzimer if they wanted to help the surrogates complete their pregnancies rather than abort them. In an email this evening, Vorzimer clarified that "there are no situations in which a surrogate has elected to abort because of this financial scandal."

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