The Unenforceability of Contracts to Abort
posted by Dave Hoffman
TMZ has a scoop. (Yes, I read TMZ. Every day.) Tagg Romney (son of Mitt) and his wife Jen entered into a surrogacy contract which contained a clause purporting to require the surrogate to abort on demand given a particular set of contingencies:
We’ve learned Tagg and his wife Jen, along with the surrogate and her husband, signed a Gestational Carrier Agreement dated July 28, 2011. Paragraph 13 of the agreement reads as follows:
“If in the opinion of the treating physician or her independent obstetrician there is potential physical harm to the surrogate, the decision to abort or not abort is to be made by the surrogate . . . In the event the child is determined to be physiologically, genetically or chromosomally abnormal, the decision to abort or not to abort is to be made by the intended parents. In such a case the surrogate agrees to abort, or not to abort, in accordance with the intended parents’ decision . . . Any decision to abort because of potential harm to the child, or to reduce the number of fetuses, is to be made by the intended parents.”
It is a common error to think that contract terms are specifically enforceable as written. I believe that there is literally not one judge in the country who would require a surrogate to abort on demand against her wishes notwithstanding this clause. In part, this results from the law’s traditional reluctance to enforce specific performance of personal services contracts. Here, that’s coupled with the constitutional interests in bodily integrity that the Baby M court discussed. Thus, while TMZ translates the agreement as “Tagg and his wife, Jen, had the right to abort the fetuses if they felt they would not be healthy,” the better line would be “Tagg and his wife, Jen, have an exit right which they can exercise if the surrogate fails to abort.”
That is, failure to abort on demand would be a material breach by the surrogate, relieving the Romneys from their duty to pay. Whether it would additionally then lead the Romneys to be able to sue – for costs incurred, probably – is unclear to me, as I think some judges would find an abort-on-demand clause against public policy.
September 21, 2012 at 7:50 am
Posted in: Contract Law & Beyond
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Responses (11)
Joe - September 21, 2012 at 11:56 am
Gestational Carrier Agreement? Okay.
Republican candidates on the presidential ticket have such interesting children.
A.J. Sutter - September 21, 2012 at 12:06 pm
Legally, your distinction about the meaning of Paragraph 13 may be appropriate. But either way you phrase it sounds pretty bad — the “exit right” version makes it sound as if the surrogacy deal is a Bain Capital investment. Also amazing that no one thought about Paragraph 13 even though Dad was already planning his run.
Brett Bellmore - September 21, 2012 at 12:41 pm
It strikes me as a more likely interpretation, that “Tagg and his wife, Jen, had the right to bar aborting if the basis for the abortion was anything besides the health of the surrogate.” A right which not having to pay in the event their biological child were killed would hardly be seen as vindicating
Or at least as plausible; The first interpretation seems more crafted to alienate pro-life voters from the Romney campaign, than to reflect the point of the contractual clause. Or at least to reflect a stance on abortion it’s quite likely the couple don’t share.
I. Glenn Cohen - September 21, 2012 at 3:43 pm
Fascinating Post! I have written briefly about the constitutionality of contracting over abortion in “The Constitution and the Rights Not to Procreate,” 60 Stan. L. Rev. 1135 (2008) http://ssrn.com/abstract=1114806 and the normative issues with it (including the damages/specific performance distinction) in “The Right Not to Be a Genetic Parent?” 81 S. Cal. L. Rev. 1115 (2008) http://ssrn.com/abstract=1116269. I review the existing case law, small that it is, but I actually think whether it would be unconstitutional to enforce such a contract is trickier than most think and depends a lot on a theory of waiver.
Dave Hoffman - September 21, 2012 at 3:54 pm
Glenn
Thanks for those references! I will have to give the USC article in particular a very careful read.
I. Glenn Cohen - September 21, 2012 at 4:01 pm
Thanks Dave. Great post. It prompted me to do a blog post of my own on Bill of Health referencing your post and the discussion, here, http://blogs.law.harvard.edu/billofhealth/2012/09/21/mitt-romneys-sons-abortion-contract/.
Joe - September 21, 2012 at 7:21 pm
As to waiver of rights here, the “right” has basic 13A connotations. Indentured servitude used to be a matter of contract. It no longer is allowed. Unclear how this could be. The right to notify and so forth might make sense. But, actually taking away the right to abort in effect is a form of indentured servitude. I recall at least one state case that did reference the 13A in this context but I admit to not reading the law articles cited.
Joe - September 21, 2012 at 7:22 pm
The 13A also makes this special since there is no “state action” requirement necessary there.
amused@anon.com - September 23, 2012 at 6:47 pm
You seem to misunderstand the point of this clause. Of course, the surrogate won’t be forced to abort. But if she doesn’t, she WILL be deemed in breach of contract. Which means she won’t be paid. Which she will surely want to avoid, given that she cannot keep the baby no matter what she does. So, this clause gives the Romneys a pretty good leverage to force the surrogate to do what the contract requires. That’s the point of the clause.
Brett Bellmore - September 23, 2012 at 8:09 pm
Again, I think this is getting the thrust of the clause backwards: Not to force the surrogate to abort, but to force the surrogate NOT to abort for any reason other than health.
And, in fact, should the surrogate decide to terminate the pregnancy for a reason other than her own health, why SHOULD she get paid? She’s chosen not to do the job she was hired for!
amused@anon.com - September 23, 2012 at 11:06 pm
Brett: they didn’t have to put a detailed clause re who decides which types of abortions if the only point was to force the surrogate not to abort. For that, all they had to do is put a clause “no baby — no money, no matter what the cause”, and it would most likely be enforceable. The clause is so detailed precisely because the Romneys wanted to keep both rights — the right to force the surrogate NOT to abort and the right to force her to abort. And they got a lot of mileage out of that clause via remedies for breach, even though specific performance would indeed not be awarded.
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