A gestational surrogacy agreement is not meant to account for political beliefs; instead, a good agreement should ensure both parties’ interests.
By Robert Terenzio, Reproductive Law Attorney
Earlier this year news reports came out giving details on the gestational carrier agreement that Tagg Romney and his wife signed to have their children via surrogacy, for which Mitt Romney helped pay for. Tagg and his wife had their first child via surrogacy signing that agreement in 2009 and again used the same surrogate for their twins born just this year. However, surrogacy is not what is at issue here. The reports allege that the 2009 contract had a clause which gives the surrogate the right to abort removed. The clause is Paragraph 13 of the agreement and 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.”
Gestational Surrogacy: Abortion Clauses in the Agreement
The agreement also had a clause taken out that gives the intended parents, i.e. Tagg and his wife, the right to abort if there is an abnormality. The more recent agreement included these clauses and when the drafting attorney was questioned about leaving the abortion clauses in the agreement, he replied, “No one noticed. What can I say?” Consequently, all the reports are focusing on the clause being left in the agreement, putting it under fire.
What needs to be made clear is that a gestational surrogacy agreement is not meant to account for political beliefs; instead, a good agreement is in place to make sure both parties’ interests are protected under the laws of the U.S. and the state. A good contract reflects our laws and those clauses accounting for our legal rights should not be taken out.
Surrogacy Agreement and Surrogate’s Rights
A gestational surrogacy agreement cannot be drafted to take away the surrogate’s right to abort when, under our laws, a woman has the ultimate right to her body and nothing can take that away. A clause giving the intended parents a right to decide is there to give them the option since it is genetically their child. If the couple takes that option the surrogate is in breach of the agreement, but the right is ultimately still hers. The issue is therefore not whether the Romney family should or should not have taken the clause out for political reasons, because frankly that is irrelevant. The law is the law and a legal agreement should reflect that.
There are a million and one reasons to criticize Romney and his campaign and anyone has the right to here. We have the freedom to believe in what we want, but political views aside, it is more important to acknowledge that a gestational surrogacy contract cannot and should not be criticized for reflecting a legal right.
Robert T. Terenzio is a reproductive law attorney in Florida. Robert’s practice, Reproductive Alternatives, provides legal services for intended parents, egg donors and surrogates using in vitro fertilization.
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