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Couple urged surrogate to abort fetus due to defect

By Tom Blackwell

When a B.C. couple discovered that the fetus their surrogate mother was carrying was likely to be born with Down syndrome, they wanted an abortion. The surrogate, however, was determined to take the pregnancy to term, sparking a disagreement that has raised thorny questions about the increasingly common arrangements.

Under the agreement the trio signed, the surrogate’s choice would mean absolving the couple of any responsibility for raising the child, the treating doctor told a recent fertility-medicine conference.

Dr. Ken Seethram, revealing the unusual situation for the first time, said it raises questions about whether government oversight of contracts between mothers and “commissioning” parents is needed.

A bioethicist who has studied the issue extensively argues that contract law should not apply to the transaction, unless human life is to be treated like widgets in a factory.

“Should the rules of commerce apply to the creation of children? No, because children get hurt,” said Juliet Guichon of the University of Calgary. “It’s kind of like stopping the production line: ‘Oh, oh, there’s a flaw.’ It makes sense in a production scenario, but in reproduction it’s a lot more problematic.”

Prof. Guichon speculated that courts likely would not honour a surrogacy contract, drawing instead on family law that would require the biological parents to support the child.

It appears no surrogacy contract has actually been contested in a Canadian court, however, leaving the transactions in some legal limbo.

Dr. Seethram’s presentation to the Canadian Society of Fertility and Andrology conference suggested the accord signed by the three in B.C. may have undermined the surrogate’s right to make decisions in a “non-coercive” environment.

The surrogate, a mother of two children of her own, eventually chose to have the abortion, partly because of her own family obligations.

A former surrogate who helps parents and mothers make such arrangements said the parties should agree on what they would do if defects are discovered during pregnancy, ensuring they have the same views on abortion. If a dispute still arises, however, parents ought to be protected, said Sally Rhoads of SurrogacyInCanada.ca.

“The baby that’s being carried is their baby. It’s usually their genetic offspring,” she said. “Why should the intended parents be forced to raise a child they didn’t want? It’s not fair.”

In some U.S. jurisdictions, in fact, parents can even sue a surrogate to recoup their payments if the woman insists on going ahead with a pregnancy against their wishes, Ms. Rhoads said.

Disputes are rare here, but she said it is usually surrogates who end up feeling most aggrieved. She recalled one case where the mother conceived twins, the parents asked for a procedure to reduce the number of fetuses to one, and the whole pregnancy was inadvertently lost.

In three other Canadian cases, surrogates are now raising the babies after the commissioning couples got divorced and backed out, Ms. Rhoads said.

The conference presentation disclosed no names or other personal details on the B.C. case, but Dr. Seethram said it occurred within the past year.

The surrogate was implanted with an embryo created with the parents’ egg and sperm. An ultrasound during the first trimester showed the fetus was likely to have trisomy 21, the genetic abnormality that leads to Down syndrome. A further test confirmed the diagnosis.

The couple and the surrogate always got along and their disagreement on what to do never became acrimonious or tense, Dr. Seethram said. But the physician with Pacific Centre for Reproductive Medicine said it appeared to him that the three had never seriously considered such a scenario before the pregnancy.

“They were certainly quite shocked,” he said. “Obviously, [the parents] had come on a long journey before commissioning the surrogacy, [but] all they were thinking about was success.”

It is an issue of growing importance. While there appear to be no national statistics, experts in the field say that surrogacy arrangements are becoming increasingly commonplace in Canada.

Larry Kahn, a Vancouver lawyer who specializes in assisted-reproduction and adoption law, said he has arranged more than 35 surrogacy contracts in each of the past three years, up from barely 15 a decade ago.

He said the surrogate is always represented by her own lawyer, but the contracts usually absolve the parents of responsibility when a defect is found and the surrogate refuses an abortion. He said he knows of no disputes involving any of his clients, though he acknowledged that it is possible the courts would not recognize the contract if a legal battle did ensue.

Dr. Seethram said he believes that the federal government will eventually pass regulations to address the situation, but Mr. Kahn said he doubts Ottawa will get involved.

Françoise Baylis, a Dalhousie University bioethicist, said the case highlights how human life can become like a commodity in such transactions.

“The child is seen by the commissioning parents as a product, and in this case a substandard product because of a genetic condition,” Prof. Baylis said.

Read more: http://www.nationalpost.com/news/Couple+ur...l#ixzz121cUwWvh

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Saw this the other day, and almost came to post it here on the FFA. I was a little scared the topic would devolve into the usual sniping back and forth inherent in religious / political threads.

It's a conundrum for sure. I am "pro-choice" for lack of a better word, but I think that if they in fact had hammered out this eventuality contractually, I think that's how the matter should be resolved.

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Saw this the other day, and almost came to post it here on the FFA. I was a little scared the topic would devolve into the usual sniping back and forth inherent in religious / political threads.

It's a conundrum for sure. I am "pro-choice" for lack of a better word, but I think that if they in fact had hammered out this eventuality contractually, I think that's how the matter should be resolved.

I think there's a good argument that the contract clause is unenforceable.

When businesses foist oppressive terms on unsophisticated consumers, those terms can be declared unconscionable, meaning the terms cannot be enforced. The surrogate mother is in a similarly vulnerable position, but for different reasons. Presumably the surrogate mother is sophisticated--she knew what she was getting into, and the contract was negotiated--but the physical and emotional demands of surrogacy make her more vulnerable than other sophisticated parties. If I were her lawyer this is what I would be arguing.

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Its HER BODY... you cant tell her what to do with her body.

That's not the issue. The issue is what happens if she chooses to have the kid. Is the couple still obligated to take the child, or can they disclaim responsibility? The contract ostensibly gives them the right to disclaim responsibility and force the surrogate mother to raise the child if she chooses to have it. The question is, is that contract term enforceable?
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Its HER BODY... you cant tell her what to do with her body.

That's not the issue. The issue is what happens if she chooses to have the kid. Is the couple still obligated to take the child, or can they disclaim responsibility? The contract ostensibly gives them the right to disclaim responsibility and force the surrogate mother to raise the child if she chooses to have it. The question is, is that contract term enforceable?
Of course it is. Its her child.

Any agreement in a contract will have the contract decide. (In this case the child is now hers).

If the contract isnt clear or have certain provisos to cover... refer back to the default of **"Its her child".

I dont see the child as a product at all. I see the carrying/pregnancy as a product.

If she is a surrogate - their decision was to abort.

**wannabe parents beware.

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What the hell kind of parents would have their baby aborted because it might have Down Syndrome? Pisses me off. :wall:

Older parents with limited resources and obligations to other children.
This is BS. If they had limited resources and other obligations they shouldn't be having a child whether it had Down syndrome or not.
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A bioethicist who has studied the issue extensively argues that contract law should not apply to the transaction, unless human life is to be treated like widgets in a factory.“Should the rules of commerce apply to the creation of children? No, because children get hurt,” said Juliet Guichon of the University of Calgary. “It’s kind of like stopping the production line: ‘Oh, oh, there’s a flaw.’ It makes sense in a production scenario, but in reproduction it’s a lot more problematic.”Prof. Guichon speculated that courts likely would not honour a surrogacy contract, drawing instead on family law that would require the biological parents to support the child.

While these types of concerns would probably lead to government regulating terms of such contracts, I think courts ignoring and rejecting such terms of such contracts no matter how unethical opens up a much bigger can of worms.
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Very disturbing topic.

I've often thought I'd love to be a surrogate. Being pregnant was wonderful, I loved almost every minute of it. And giving a child to a mother who can't carry one...wow, what a gift.

But I care for down syndrome adults. They are pure and honest people. The happiness of childhood for your entire life. I get that there are struggles but different isn't "defective". I would never agree to an abortion unless my own life was at risk. Certainly not a situation I'd want to find myself in.

Certainly makes you think.

Even more so it makes me think more people need to be introduced to children with special needs.

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What the hell kind of parents would have their baby aborted because it might have Down Syndrome? Pisses me off. :yes:

Older parents with limited resources and obligations to other children.
I don't usually picture those looking for surrogates as parents that already have children. I'm sure surrogacy is expensive and I'd guess limited resources AND already having children are probably not the common factors for such parents.
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Follow me for a minute. I'm just thinking aloud, if I may.

If two people were meant to have children, wouldn't they be able to? I don't know if I agree with the whole surrogate mother thing, and it's not a religion thing either. I just believe that nature takes care of things on its own. Why mess with the natural order of things? If having a child is such a priority, why not adopt? Just because a surrogate birthed baby is 2/3 genetically yours, does that make it better?

I guess I just don't get it, and maybe that is because I don't understand it.

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Follow me for a minute. I'm just thinking aloud, if I may.If two people were meant to have children, wouldn't they be able to? I don't know if I agree with the whole surrogate mother thing, and it's not a religion thing either. I just believe that nature takes care of things on its own. Why mess with the natural order of things? If having a child is such a priority, why not adopt? Just because a surrogate birthed baby is 2/3 genetically yours, does that make it better?I guess I just don't get it, and maybe that is because I don't understand it.

Where's the other 1/3 come from?
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Very disturbing topic.

I've often thought I'd love to be a surrogate. Being pregnant was wonderful, I loved almost every minute of it. And giving a child to a mother who can't carry one...wow, what a gift.

But I care for down syndrome adults. They are pure and honest people. The happiness of childhood for your entire life. I get that there are struggles but different isn't "defective". I would never agree to an abortion unless my own life was at risk. Certainly not a situation I'd want to find myself in.

Certainly makes you think.

Even more so it makes me think more people need to be introduced to children with special needs.

Discussions of this nature always remind of these insightful words:

Welcome to Holland

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That is a tough one to be honest. I have had friends who have had children with special needs and I know that I would not have it within myself to be the primary caregiver of one. So if I had the knowledge before birth, then I would probably opt for abortion myself.

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Very disturbing topic.

I've often thought I'd love to be a surrogate. Being pregnant was wonderful, I loved almost every minute of it. And giving a child to a mother who can't carry one...wow, what a gift.

But I care for down syndrome adults. They are pure and honest people. The happiness of childhood for your entire life. I get that there are struggles but different isn't "defective". I would never agree to an abortion unless my own life was at risk. Certainly not a situation I'd want to find myself in.

Certainly makes you think.

Even more so it makes me think more people need to be introduced to children with special needs.

Discussions of this nature always remind of these insightful words:

Welcome to Holland

Wow, I've never read that before. It's so perfect.

We lost one of the men I care for at age 46 last November. He was my husbands brother, not by birth but certainly by life. He was buried on the day we were to move into our new house. So we put off the move for a few days and laughed and cried with his mother, sister and sisters family. Knowing him and seeing the world through his eyes has been one of the greatest gifts I've had...and definitely one of the greatest gifts our children have had.

I'll be passing on that link. Thanks. I couldn't have explained it better.

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That is a tough one to be honest. I have had friends who have had children with special needs and I know that I would not have it within myself to be the primary caregiver of one. So if I had the knowledge before birth, then I would probably opt for abortion myself.

Abortion is something far removed from raising a special needs child. Not to get into the whole debate on which side of abortion is the right one but the surrogate certainly has the right of refusal to what happens to her body. What if aborting left her unable to give birth again? A very tough situation to be in.
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What the hell kind of parents would have their baby aborted because it might have Down Syndrome? Pisses me off. :angry:

Older parents with limited resources and obligations to other children.
I'll call BS on this one. I think that most people know (and their doctor should be telling them as well) that chance of having a special needs kid goes up quite a bit as you get older. If you are trying to have kids knowing that, you should be willing to take on the consequences. If they weren't trying, don't have the funds, etc.. then it shouldn't be a matter of Downs vs. normal anyway.
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Follow me for a minute. I'm just thinking aloud, if I may.If two people were meant to have children, wouldn't they be able to? I don't know if I agree with the whole surrogate mother thing, and it's not a religion thing either. I just believe that nature takes care of things on its own. Why mess with the natural order of things? If having a child is such a priority, why not adopt? Just because a surrogate birthed baby is 2/3 genetically yours, does that make it better?I guess I just don't get it, and maybe that is because I don't understand it.

Where's the other 1/3 come from?
Of course, how foolish of me. What do you think I meant?When that baby pops out, who is the mother, right then? The egg donor, or the vehicle that carried the child to term? There is a connection between the surrogate and the child that cannot ever be broken. No contract can override that bond.
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... Why mess with the natural order of things? ...

How is this any more messing with the natural order of things than you being able to post your thoughts to a larger audience than the tribe around you?
Natural order in my tribe would kill off idiots like you.
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What the hell kind of parents would have their baby aborted because it might have Down Syndrome? Pisses me off. :angry:

Older parents with limited resources and obligations to other children.
That's like saying if some terrible accident happened once a healthy child was born to let it die vs taking care of a child in a wheelchair or something simalar ( IMO )
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Its HER BODY... you cant tell her what to do with her body.

People tell me what to do with my body all the time. For example, my employer insists that I get my body into the office each day.I'm pro-life, so of course I support the surrogate here, but if I was pro-choice I would absolutely be siding with the biological parents if they wished to enforce the terms of the contract that everybody agreed upon. The only reason why I'm not taking that position is because I don't think you can enforce a contract that calls for the killing of an innocent third party (from my POV obviously).
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Its HER BODY... you cant tell her what to do with her body.

That's not the issue. The issue is what happens if she chooses to have the kid. Is the couple still obligated to take the child, or can they disclaim responsibility? The contract ostensibly gives them the right to disclaim responsibility and force the surrogate mother to raise the child if she chooses to have it. The question is, is that contract term enforceable?
Of course it is. Its her child.

Any agreement in a contract will have the contract decide. (In this case the child is now hers).

If the contract isnt clear or have certain provisos to cover... refer back to the default of **"Its her child".

I dont see the child as a product at all. I see the carrying/pregnancy as a product.

If she is a surrogate - their decision was to abort.

**wannabe parents beware.

I'm also confused as to why the contract is unenforceable. If it clearly states the parents' wishes should the baby have downs syndrome, then the surrogate must comply. Assuming that the contract is clear as to what happens if she does not comply, then what is the problem?
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Its HER BODY... you cant tell her what to do with her body.

People tell me what to do with my body all the time. For example, my employer insists that I get my body into the office each day.I'm pro-life, so of course I support the surrogate here, but if I was pro-choice I would absolutely be siding with the biological parents if they wished to enforce the terms of the contract that everybody agreed upon. The only reason why I'm not taking that position is because I don't think you can enforce a contract that calls for the killing of an innocent third party (from my POV obviously).
You can't enforce a contract that calls for the application of a perfectly legal procedure?
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... Why mess with the natural order of things? ...

How is this any more messing with the natural order of things than you being able to post your thoughts to a larger audience than the tribe around you?
Natural order in my tribe would kill off idiots like you.
Super.
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Its HER BODY... you cant tell her what to do with her body.

People tell me what to do with my body all the time. For example, my employer insists that I get my body into the office each day.I'm pro-life, so of course I support the surrogate here, but if I was pro-choice I would absolutely be siding with the biological parents if they wished to enforce the terms of the contract that everybody agreed upon. The only reason why I'm not taking that position is because I don't think you can enforce a contract that calls for the killing of an innocent third party (from my POV obviously).
You can't enforce a contract that calls for the application of a perfectly legal procedure?
No reason for you to be deliberately obtuse here. I made it very clear that my statement applied to somebody who happens to hold my priors, and that I knew that sentiment wouldn't be shared by someone who didn't.
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Its HER BODY... you cant tell her what to do with her body.

People tell me what to do with my body all the time. For example, my employer insists that I get my body into the office each day.I'm pro-life, so of course I support the surrogate here, but if I was pro-choice I would absolutely be siding with the biological parents if they wished to enforce the terms of the contract that everybody agreed upon. The only reason why I'm not taking that position is because I don't think you can enforce a contract that calls for the killing of an innocent third party (from my POV obviously).
You can't enforce a contract that calls for the application of a perfectly legal procedure?
No reason for you to be deliberately obtuse here. I made it very clear that my statement applied to somebody who happens to hold my priors, and that I knew that sentiment wouldn't be shared by someone who didn't.
But I don't understand what it has to do with sentiment. I can appreciate your beliefs and understand why you wouldn't want to enforce such a contract, but it is a contract based on the laws of the land. I understand your first sentence, but I don't know why you say that you "don't think you can enforce [such] a contract."
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Just adopt. Genetic offspring are overrated anyway.

:popcorn: I can think of quite a few people in the FFA who would be better off rolling the dice with adoption than sticking their kids with their own DNA.
Adoption of white babies is damn near impossible in this country.
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But I don't understand what it has to do with sentiment. I can appreciate your beliefs and understand why you wouldn't want to enforce such a contract, but it is a contract based on the laws of the land. I understand your first sentence, but I don't know why you say that you "don't think you can enforce [such] a contract."

Yes you do. You know perfectly well that I'm making a statement about what the law should be as opposed to what the law is. I have absolutely no qualifications to comment on the latter topic, but I'm as well-placed as anybody to talk about the former.
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Saw this the other day, and almost came to post it here on the FFA. I was a little scared the topic would devolve into the usual sniping back and forth inherent in religious / political threads.

It's a conundrum for sure. I am "pro-choice" for lack of a better word, but I think that if they in fact had hammered out this eventuality contractually, I think that's how the matter should be resolved.

I think there's a good argument that the contract clause is unenforceable.

When businesses foist oppressive terms on unsophisticated consumers, those terms can be declared unconscionable, meaning the terms cannot be enforced. The surrogate mother is in a similarly vulnerable position, but for different reasons. Presumably the surrogate mother is sophisticated--she knew what she was getting into, and the contract was negotiated--but the physical and emotional demands of surrogacy make her more vulnerable than other sophisticated parties. If I were her lawyer this is what I would be arguing.

This presupposes the contract was entered into while she was already carrying the kid. I don't think this is how it works.
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But I don't understand what it has to do with sentiment. I can appreciate your beliefs and understand why you wouldn't want to enforce such a contract, but it is a contract based on the laws of the land. I understand your first sentence, but I don't know why you say that you "don't think you can enforce [such] a contract."

Yes you do. You know perfectly well that I'm making a statement about what the law should be as opposed to what the law is. I have absolutely no qualifications to comment on the latter topic, but I'm as well-placed as anybody to talk about the former.
"I don't think you should be able to enforce such a contract" is a different statement than "I don't think you can enforce such a contract."
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Follow me for a minute. I'm just thinking aloud, if I may.If two people were meant to have children, wouldn't they be able to? I don't know if I agree with the whole surrogate mother thing, and it's not a religion thing either. I just believe that nature takes care of things on its own. Why mess with the natural order of things? If having a child is such a priority, why not adopt? Just because a surrogate birthed baby is 2/3 genetically yours, does that make it better?I guess I just don't get it, and maybe that is because I don't understand it.

Where's the other 1/3 come from?
Of course, how foolish of me. What do you think I meant?When that baby pops out, who is the mother, right then? The egg donor, or the vehicle that carried the child to term? There is a connection between the surrogate and the child that cannot ever be broken. No contract can override that bond.
There is no connection or trace between a baby and it's surrogate. The surrogate is merely a temporary holding device.As for aborting a fetus with a mental problem, I don't see the big deal. I would not want to raise a child like that. I would go so far to argue that every mentally disabled fetus should be aborted.
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Follow me for a minute. I'm just thinking aloud, if I may.

If two people were meant to have children, wouldn't they be able to? I don't know if I agree with the whole surrogate mother thing, and it's not a religion thing either. I just believe that nature takes care of things on its own. Why mess with the natural order of things? If having a child is such a priority, why not adopt? Just because a surrogate birthed baby is 2/3 genetically yours, does that make it better?

I guess I just don't get it, and maybe that is because I don't understand it.

Where's the other 1/3 come from?
Of course, how foolish of me. What do you think I meant?

When that baby pops out, who is the mother, right then? The egg donor, or the vehicle that carried the child to term? There is a connection between the surrogate and the child that cannot ever be broken. No contract can override that bond.

In that situation, the mother is the woman whose egg was used and who is raising the baby, not the lady who gave birth. Any connection you percieve might be there is, to use your term, broken.
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Follow me for a minute. I'm just thinking aloud, if I may.If two people were meant to have children, wouldn't they be able to? I don't know if I agree with the whole surrogate mother thing, and it's not a religion thing either. I just believe that nature takes care of things on its own. Why mess with the natural order of things? If having a child is such a priority, why not adopt? Just because a surrogate birthed baby is 2/3 genetically yours, does that make it better?I guess I just don't get it, and maybe that is because I don't understand it.

Where's the other 1/3 come from?
Of course, how foolish of me. What do you think I meant?When that baby pops out, who is the mother, right then? The egg donor, or the vehicle that carried the child to term? There is a connection between the surrogate and the child that cannot ever be broken. No contract can override that bond.
So what do you think should happen in this case?
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Follow me for a minute. I'm just thinking aloud, if I may.If two people were meant to have children, wouldn't they be able to? I don't know if I agree with the whole surrogate mother thing, and it's not a religion thing either. I just believe that nature takes care of things on its own. Why mess with the natural order of things? If having a child is such a priority, why not adopt? Just because a surrogate birthed baby is 2/3 genetically yours, does that make it better?I guess I just don't get it, and maybe that is because I don't understand it.

Where's the other 1/3 come from?
Of course, how foolish of me. What do you think I meant?When that baby pops out, who is the mother, right then? The egg donor, or the vehicle that carried the child to term? There is a connection between the surrogate and the child that cannot ever be broken. No contract can override that bond.
There is no connection or trace between a baby and it's surrogate. The surrogate is merely a temporary holding device.As for aborting a fetus with a mental problem, I don't see the big deal. I would not want to raise a child like that. I would go so far to argue that every mentally disabled fetus should be aborted.
I just might vote for you if you happen to run for office. What are your thoughts on suicide?
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Follow me for a minute. I'm just thinking aloud, if I may.

If two people were meant to have children, wouldn't they be able to? I don't know if I agree with the whole surrogate mother thing, and it's not a religion thing either. I just believe that nature takes care of things on its own. Why mess with the natural order of things? If having a child is such a priority, why not adopt? Just because a surrogate birthed baby is 2/3 genetically yours, does that make it better?

I guess I just don't get it, and maybe that is because I don't understand it.

Where's the other 1/3 come from?
Of course, how foolish of me. What do you think I meant?

When that baby pops out, who is the mother, right then? The egg donor, or the vehicle that carried the child to term? There is a connection between the surrogate and the child that cannot ever be broken. No contract can override that bond.

In that situation, the mother is the woman whose egg was used and who is raising the baby, not the lady who gave birth. Any connection you percieve might be there is, to use your term, broken.
It's not an arguable issue. I get that.
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Follow me for a minute. I'm just thinking aloud, if I may.If two people were meant to have children, wouldn't they be able to? I don't know if I agree with the whole surrogate mother thing, and it's not a religion thing either. I just believe that nature takes care of things on its own. Why mess with the natural order of things? If having a child is such a priority, why not adopt? Just because a surrogate birthed baby is 2/3 genetically yours, does that make it better?I guess I just don't get it, and maybe that is because I don't understand it.

Where's the other 1/3 come from?
Of course, how foolish of me. What do you think I meant?When that baby pops out, who is the mother, right then? The egg donor, or the vehicle that carried the child to term? There is a connection between the surrogate and the child that cannot ever be broken. No contract can override that bond.
There is no connection or trace between a baby and it's surrogate. The surrogate is merely a temporary holding device.As for aborting a fetus with a mental problem, I don't see the big deal. I would not want to raise a child like that. I would go so far to argue that every mentally disabled fetus should be aborted.
I just might vote for you if you happen to run for office. What are your thoughts on suicide?
I am for doctors assisting with suicide. If someone wants to die, then they have the right to choose that.
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Follow me for a minute. I'm just thinking aloud, if I may.If two people were meant to have children, wouldn't they be able to? I don't know if I agree with the whole surrogate mother thing, and it's not a religion thing either. I just believe that nature takes care of things on its own. Why mess with the natural order of things? If having a child is such a priority, why not adopt? Just because a surrogate birthed baby is 2/3 genetically yours, does that make it better?I guess I just don't get it, and maybe that is because I don't understand it.

Where's the other 1/3 come from?
Of course, how foolish of me. What do you think I meant?When that baby pops out, who is the mother, right then? The egg donor, or the vehicle that carried the child to term? There is a connection between the surrogate and the child that cannot ever be broken. No contract can override that bond.
So what do you think should happen in this case?
I don't have an argument in this case, because I find it unfathomable to enter into such an agreement on either side.
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