Medical Decision Making during a Surrogate Pregnancy

This article is concerned with a tradition of paternalism within the medical and legal professions toward pregnant women, their children, and the medical decisions that pregnant women make affecting both. In most surrogacy contracts, the surrogate mother agrees not to have an abortion and to refrain from certain types of harmful conduct, including the consumption of alcoholic beverages, smoking, and the use of illegal drugs. This article will consider the implications these provisions have for medical decision making during pregnancy, and for the concepts of individual autonomy, informed consent and the developing doctrine of fetal rights. Considering the nature of the surrogate mother’s promises — not to have an abortion except if the natural father insists, to consent to all recommended medical treatments for the benefit of the fetus and herself — and the difficulties they raise both for the principals and for the legal and medical professions, this article proposes to make specific performance of the abortion provisions impossible to obtain and specific performance of the medical care provisions no more obtainable than would otherwise be the case if there were no surrogate contract at all. If physicians and judges resist the temptation to depersonalize the surrogate, at least she will not have given up her most fundamental rights of privacy and autonomy