This post originally appeared on Harvard Law Bill of Health on February 5, 2021.
Recently, media reported that Zheng Shuang, a popular Chinese actress, commissioned two surrogates with boyfriend Zhang Hang, and then allegedly decided, seven months into the pregnancies, that she did not want to become a parent and questioned the possibility of abortion or adoption.
Zhang asserts that he has been caring for the infants in the U.S. for more than a year after Zheng abandoned the infants. Zheng has not addressed the allegations directly, and multiple facts remain unclear.
This case, and other rare similar cases, raise the question: If intended parents initiate an agreement with a gestational surrogate to create a child, can they also terminate the agreement – and pregnancy – if they no longer want the resulting child?
When Intended Parents Change Their Mind
Multiple factors may prompt intended parents to change their mind, including new information relating to the fetus or a change in their own personal circumstances.
Several high profile cases addressed this issue when intended parents directed their surrogates to terminate fetuses based on a diagnosis of fetal abnormality (such as physical disabilities or Down Syndrome), or alternatively, as a means of selective reduction to decrease the number of infants that would be born.
In other instances, intended parents undergo a change in their personal circumstances, such as if their relationship dissolves amidst the pregnancy. The allegations against Zheng are not the first time that a high powered, highly paid woman commissioned a surrogate, split from her romantic partner, and urgently tried to erase her status as an intended mother.
Several years ago, U.S. actress Sherri Shepherd also attempted to extricate herself from a commercial surrogacy contract to create a child during her split with ex-husband Lamar Sally. Despite working with fertility agencies and attorneys to arrange and secure multiple contracts with an oocyte donor and gestational surrogate, five months into the pregnancy Shepherd backpedaled on their plan and refused to sign a pre-birth order that would name her as mother. Upon the infant’s birth, Shepherd continued to deny her status as the child’s mother. Shepherd filed a petition asserting the surrogacy contract could not be enforced and unsuccessfully sought to remove any legal, physical, or financial obligations toward the infant.
Enforcing Commercial Surrogacy Contracts
Laws across the U.S. reflect a patchwork approach to regulating commercial surrogacy contracts: while some states prohibit the practice or remain silent on the issue, multiple states expressly enforce both surrogacy contracts and provisions within the contract. Contracts can include terms such as adhering to prenatal appointments, but may also include submitting to invasive genetic testing, or a clause indicating conditions when the intended parents would seek to terminate the pregnancy.
Unlike other contracts for unique personal services, commercial surrogacy contracts may contain specific provisions directing the surrogate to undergo risky and invasive medical procedures, or even purporting the power to compel her to undergo an abortion. I’ve described previously how this constitutes a drastic anomaly; unlike any other medical context, where patients may revoke consent, intended parents expect the surrogate to waive her right to informed consent irrevocably. This decision occurs long before any medical intervention, before becoming pregnant, before hearing of risks and benefits of each intervention.
One court, in passing, discussed the issue of an abortion clause, but did not rule directly whether it would be legally enforceable. Some legal scholars assert such provisions should be enforceable: parents should not be forced to accept an unwanted child, and surrogates knowingly and voluntarily waive certain rights when they enter into the contract. Other legal scholars warn that accepting or enforcing waivers of informed consent to medical procedures, including an abortion, undermines the surrogate’s bodily integrity and dignity.
Independent of whether a court would uphold an abortion clause, commercial surrogacy disputes demonstrate the power of using contracts as a forceful psychological lever. If the contract contains a termination provision, intended parents may communicate to the surrogate she must comply, threaten to abdicate legal responsibility for the future child, and enlist their attorney to demand the surrogate abide the terms of the contract. Actual enforcement may not be required: coercion and threats of litigation may be sufficient.
Exploiting the Intersection of Abortion Law and Termination Clauses
Notably, Zheng’s alleged statement that it was too late in the pregnancy to seek an abortion reflects a common misconception about U.S. abortion law: several states do not have gestational limits and would legally permit late term abortions for any reason by willing providers; many more states legally permit late term abortions if the pregnant patient demonstrates the pregnancy could harm her health. This encompasses a broad definition, including psychological health and emotional distress. Thus, if intended parents change their mind and seek to activate an abortion clause even late term in a pregnancy, this may constitute a legally viable option.
Reproductive laws are designed to permit pregnant patients to terminate a pregnancy as a means to avoid distress and maintain personal and bodily autonomy, while also balancing regard for potential life. Surrogacy contracts that contain termination clauses capitalize on this power by attempting to transfer such rights to intended parents, citing the intended parents’ distress, their reproductive liberty, and the surrogate’s freedom to contract. Such an interpretation fundamentally distorts the concept that these laws should be designed to recognize the pregnant woman’s autonomy and bodily integrity while also respecting the potentiality of fetal life.
The Problem with Termination Clauses
These rare cases suggest some parents view both the surrogate and fetus or infant through the lens of Amazon culture: market products to order, control, cancel, or return when the products fail to meet our expectations. But children do not come with a satisfaction or return policy; they are not fungible or disposable.
Termination clauses in surrogacy contracts categorize both surrogates and children as conditionally precious: surrogates are a blessing (only when they obey); and children are a gift (but only the right kind: disability-free, not too many, and not an inconvenient tie to a former romantic partner). Termination clauses shatter the boundaries of ordinary parental obligations and expectations, and they constitute the very essence of dehumanization and detachment.