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dumblonde dumblonde
 
M$3 March 19, 2009 06:21 AM

If an IVF doctor implants someone else's embryo in your uterus by mistake, can the biological mother tell you not to abort?

What if there is a surrogacy contract instead? If a surrogate aborts without the consent of the biological mother, has she breached the contract? Does signing the contract waive her rights to an abortion? In that case, can an abortion be a breach of contract?
IVF stands for In Vitro Fertilization

This question was inspired by an article I read about a case in which a doctor mixed up the embryos. http://www.slate.com/id/2214057/

This is obviously an unresolved ethical/legal issue. I want to get a grasp about what people think. Well reasoned, properly cited answers please.

WARNING: This will not be turned into a pro life vs. pro-choice debate. That is not the point of the question. Any answers that point the conversation in that direction will be flagged as unhelpful.
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hcp56 hcp56
 
 March 19, 2009 02:53 PM
That is a really tough question. You a have two competing issues here: the right of property of the original owner of the embryo (biological mother) and the rights of the unintended surrogate mother. This is a legal issue that I don't think anyone would willingly want to deal with. You must consider that the unwilling surrogate has a physical and psychological burden. You must also consider that every pregnancy has the risk of death and permanent physical deficits for any surrogate. Given this, I think that the desires of such an unwilling surrogate outweigh the property rights of any unwilling embryo donor/owner.

One would hope, however, that anyone willing to go through the trouble of IVF treatment might be more inclined to carry to term such a pregnancy at the REQUEST of the unwilling embryo donor/owner. I know that didn't happen in the case sited above, but the opportunity should have been given to the embryo donor/owner. I believe that the doctors acted improperly, unethically and possibly illegally in this instance (if it were in the US-Japan not sure of the legality of embryo as property).

In the case of the surrogacy contract, the contract would hold. The only way that I could see a surrogacy contract forbidding abortion being canceled would be if the health of the surrogate were seriously at risk. Other than that instance, if the surrogacy contract forbade it, I would think that an abortion would be a breach of contract and therefore addressed under law.

I have added some links below regarding embryos as property. It is clear that the issue is still evolving somewhat in the courts.
Source(s):
https://thefloridacatholic.org/cns/2008_articles/20081021_cns_embryos.php
http://www.alternet.org/rights/21338/

Asker's Rating:
• Thanks everyone for the insightful and helpful answers!
So I asked my Constitutional Law professor about the issue and he said that in both cases, the pregnant can't be stopped from getting an abortion because the right to choose overpowers whatever rights someone else has over the embryo.
But in the case of the surrogacy contract, the surrogate could be sued for breach.


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robbrown robbrown
 
March 19, 2009 11:19 AM
The question will be solved by determining the point where the biological mother gives up her embryo.

I think that once embryo is implanted, that the biological mother has fulfilled her donation. When the embryo is physically implanted into another person, all control over health, growth, etc is transferred to the recipient.

The demarcation point could be changed if a contract was in place where both people agreed on a point other than the time of transplant. However, without provision it makes the most sense to me that when the embryo is successfully transferred the donor looses control.

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dumblonde dumblonde
 
March 19, 2009 01:17 PM
So in both cases, you're saying the woman carrying the child can abort? I absolutely agree that in donation cases the donor loses all rights, and the case law leans that way. But in these cases there's no donation and no intention to give up the embryos.

There's no donation in either case. The first case is a doctor's mistake. An embryo that doesn't belong to you is implanted when you were expecting your own embryo and the other patient was expecting her own as well.
The second case is a surrogacy case. The biological parents don't donate either. They hire a surrogate to carry their embryo to term because for various reasons they can't. So in neither case was there ever an intention to waive rights to the embryos.

The real question is does the pregnant woman waive/lose her abortion rights because she's carrying an embryo that was never intended to be donated in the first place. In the first case she obviously doesn't consent to carrying the embryo because she gets it by mistake. But in the second case, she agrees to carry it in order to give it to its biological parents when it's born.

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robbrown robbrown
 
March 19, 2009 01:33 PM
Yes, these are unique cases.

In cut-and-dry cases, I'll maintain that determining the demarcation point is the most important consideration.

For cases where a doctor made a mistake and other such gray areas tertiary considerations would result in a complicated decision. This decision would have to go to a family court where medical, social and family views could be weighed and a decision could be made. In short, without a clear view this argument is futile. However, if the doctor and everyone involved agreed on a solution then there isn't a problem.

I think that for the most part, hospitals and doctors are very careful with this sort of thing. Mixing things up (embryo's, sperm, blood, etc) will almost always result in a drastic and sometimes fatal outcome.

I sincerely hope that the medical staff responsible for this mistake was either fired or relegated to other duties. If an honest mistake was made then there should be more processes and controls in place to ensure that mix up's have no chance of happening.

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dumblonde dumblonde
 
March 19, 2009 02:26 PM
Oh yeah it's definitely a clear malpractice test. This doctor effectively ruined the lives of many people.

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srgothard srgothard
 
March 19, 2009 11:59 AM
My leaning is that if sperm donors have no say, then embryo donors also have no say. Maybe in both cases you could request a special clause requiring the pregnancy be carried to term, but I think the basis needs to be case law related to sperm donors. Once you donate, unless you added special rules, you have no say.

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dumblonde dumblonde
 
March 19, 2009 01:05 PM
But there's no contract in the first case because the situation was unintended. The doctor screwed up and implanted another patient's embryo (which the other patient intended to carry to term). In the second case there is a contract but there's not a donation bc the biological mother intends to get the child, just someone else carries it.

I do agree that a clause in the surrogacy contract would be very useful because it can be interpreted to mean that the surrogate waived her right to an abortion. Clear contracts are always a good idea. If it's not in the contract, it's up to the judge!

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angilla angilla
 
March 19, 2009 02:17 PM
Well, until I got to the end of the article, I agreed with this statement, "It may be your baby, but it's her body, and that's the legal trump card." Nobody can tell her what to, or not to do, with her reproductive organs.

But at the end I felt so sad... the other woman is in her 40's, has never been able to get pregnant. Do they have more embryos for her? Can they get more embryos from her? Was this her last chance at seeing a baby born from her? They claim they didn't tell the other woman because she was too weak... doubt it... they probably didn't tell her because they didn't want drama. But they should have told her, immediately. And I think they should have had the chance to explain this to the carrying mother. If this WAS the older woman's last chance at ever seeing a baby born from an embryo of her own, maybe the carrying mother would have understood... I know I would have. The carrying mother is only in her 20's, there's so much time left, unlike the other woman... I would've carried the baby and let her adopt it (if it was proven to be hers, since the first 2 embryos were the correct ones) and gone for the next one.

But that's all easy to say while looking in from the outside, and not easy to do once on the inside. Regardless, I still think that... unless, as said above, there's a clause clearly defining that the carrier waives the right to an abortion... it's ultimately her body that noone can control besides her.

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dumblonde dumblonde
 
March 19, 2009 02:29 PM
I agree. Your body, your choice. It's just so sad!
That doctor just created such a difficult situation for everyone. He should be sued!

In the contract case, do you think if the surrogate has an abortion she can be sued for breach?

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angilla angilla
 
March 19, 2009 03:36 PM
Oh that doctor should be sued, fired, have his license removed, everything! I mean, if that was the older woman's last possible embryo ever, he destroyed something that can never be replaced. That's a horrible crime, and if I were that woman I would be devastated.

I think in the contract case, it would follow like any other contract, so yeah I think she could be sued for the breach. I'd say that the consequences of breaking the contract should be spelled out in the contract itself so that the surrogate knows what the consequences are, but that'd probably just scare the surrogate away... maybe even offend her. "Here I am offering to do the biggest favor of my life for someone and you threaten to sue me if I change my mind?!"

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dumblonde dumblonde
 
March 19, 2009 05:09 PM
There's definitely the hazard of a woman being less willing to be a surrogate if she knows she can be sued.
That's why I think it's better if the surrogate is not a stranger but someone close to you: a sister, a good friend, a cousin. Trust is so important in these cases!!!

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angilla angilla
 
March 19, 2009 09:20 PM
Well, I had a friend that I'd known for around 18 years at the time... since kindergarten. She wanted to sell off her old laptop, she agreed to let me pay her $20/month for it, and because I was a long-time friend she waived the contract. If she'd tried to get me to sign a piece of paper saying she could sue me if I didn't pay, I would've been offended and told her to shove the laptop where the sun don't shine, to be honest.

If it were me for my sister, and she were strongly against abortion, just knowing that for me would make a sort of... un-spoken rule that I would know she didn't want me to get one. But if she came after me with a contract, laying out what control she had over my body and the next 9 months of my future and how she could sue me if I changed my mind, would make me feel trapped. You know, when you're backed into a corner with only one way out and that one way out is off-limits, it gets scary. I wouldn't do it.

I almost feel like... if you can't trust someone enough to respect and uphold your belief about something as important as abortion while carrying your child, you shouldn't be letting them carry your child in the first place. I mean, you're giving them the most treasured piece of your life for 9 months. Will there be clauses against drinking alcohol and taking certain drugs in that contract, too? But that's just me.

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dumblonde dumblonde
 
March 19, 2009 11:50 PM
Well, I asked my Constitutional Law professor and he said that there have been cases that have decided that even in the case of surrogacy contracts, the surrogate can't be prevented from having an abortion if she changes her mind. But it doesn't mean the biological parents can't sue because it's still a breach of contract. I think that solution makes sense to me. In surrogacy the contract is so important because it's what ensures the rights of the biological parents, because otherwise the birth mother has the rights over the baby when it's born. But while it's in your body, it's more about whose body it is and not about who owns the embryo.
It's just so complicated.

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