"Public Policy" and Non-Enforcement of Contracts

For the first decade or so of law teaching, my classes worked through the Baby M case to demonstrate the sort of circumstances that would justify non-enforcement of a contract on the ground of public policy. For those who don't remember, the battle in Baby M was over the enforceability of a contractual obligation to terminate parental rights. The gestational surrogate (and biological mother) who gave birth to "baby M" refused to surrender the newborn to the sperm-donor father and asserted her parental rights, both in contravention of the contract she had signed.

The New Jersey Supreme Court held the contract was unenforceable as against the state's public policy of terminating parental rights only when in the best interests of the child. In other words, the biological mother could not contract away the rights entailed by motherhood.

I no longer teach this case in part because "Baby M," Melissa Stern, is now an adult who has graduated from law school. More to the point, the case is out of date because no longer does the gestational surrogate contribute her egg to the child in her womb. Instead, the child is conceived in vitro outside anyone's womb and only later implanted in the one who bears the child through the course of pregnancy and delivery. We now read and discuss two cases on the enforceability of such contracts, one concluding "no problem" and the other reaching the contrary result. We also look at Virginia's statute that requires judicial pre-approval for such contracts.

All of this is a long introduction to "You Are Obligated to Terminate This Pregnancy Immediately: The Contractual Obligations of a Surrogate to Abort Her Pregnancy (download here). Cribbing form the abstract:

When Crystal Kelley learned that a couple wanted to hire her as their surrogate, she was ecstatic. Raising two children of her own, Crystal yearned for the opportunity to help another couple achieve their dream to become parents. And while Crystal’s motives were certainly altruistic in part, she was a single mother with a high school degree, doing her best to provide for her own family. The $22,000 fee that Crystal would be paid would help not just with medical expenses, but also with rent and birthday gifts for her own girls. It seemed to be a perfect situation for everyone, especially when one of the two embryos that the intended parents already had frozen was successfully implanted and Crystal became pregnant.

About halfway through her pregnancy, Crystal and the intended parents learned some heartbreaking news about the fetus. The fetus appeared to have a cleft palate, a heart abnormality, and potentially Down syndrome. While Crystal was devastated by the news, the response of the intended parents was simply shocking: the intended parents mandated that the child be aborted — and soon. When Crystal refused, even after being offered $10,000 for her to have the abortion, Crystal and her lawyer returned to the surrogacy contract that the parties had signed months before, which included a clause discussing the termination of the pregnancy. The surrogacy agreement, which was signed in Connecticut where surrogacy contracts are legally enforceable, stated in part that Crystal would abort "in case of severe fetus abnormality." Crystal adamantly believed that the child should be given a chance to survive, even if it meant a childhood of countless surgeries and likely lifelong disabilities, so when her options were to abort the fetus, to surrender the child to the intended parents — who made clear that they intended to abandon the child to the foster system immediately upon her birth — or to flee to a state that did not legally recognize surrogacy agreements, Crystal took her two children and moved to Michigan. A few weeks later, Baby S was born and adopted by a loving family.

The shocking nature of the facts of this particular case and its contract, whose "termination term" is standard, recall to mind the limits of contract law. There would be no objection to enforcement of a termination term in a purely libertarian world, at least one in which there was no philosophical anthropology. I urge folks to download and read Brittney Kern's complete article.

A thick notion of human nature provides warrant for limits on the tool of contract. For my thoughts about that "nature" feel free to read Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).