A contract is not a license. Americans believe strongly in freedom of contract, but that freedom has never meant every promise put on paper becomes legally enforceable simply because two parties agreed and signed their names.
You cannot contract to commit a crime. You cannot buy another human being or a human organ. You cannot hire someone to murder your enemy and then sue him for breach of contract if he gets cold feet.
And no woman should face breach of contract liability because she refused to abort a child.
Yet that issue is among the extraordinary legal questions raised by the case of McKenna West, a surrogate mother who refused to abort a baby diagnosed at 20 weeks with a serious congenital heart condition.
West carried a baby whose biological parents are California couple Nausheen Gilkar and Omar Ahmed. After the diagnosis, a dispute arose over terminating the pregnancy. West ultimately refused, fled to Texas for legal protections, and carried the baby Gabriel to term, giving birth in August. The intended parents have alleged numerous breaches of the surrogacy agreement and are seeking more than $100,000 in damages.
The broader litigation involves complicated questions of custody, parentage, and the parties’ conduct. But the breach of contract claim should not be complicated. American courts should never enforce a contractual provision requiring a woman to kill a child.
This is unconscionable.
Freedom of Contract Has Limits
Contract law has never operated on the theory that consenting adults can agree to literally anything and then demand the government to enforce their terms.
For example, courts do not enforce breach for murder-for-hire agreements.
Suppose I agree to pay someone $100,000 to murder another person. He accepts but later says he can’t follow through with it. Can I march into court and argue that we had a contract, so he owes me damages for failing to kill someone?
Of course not. The court would say that our agreement is unenforceable. So, the problem isn’t whether we formed an agreement. The problem is that the contract is immoral.
This argument does not depend upon abortion being legally classified as homicide everywhere. It isn’t. The analogy demonstrates the underlying principle: Freedom of contract stops where sufficiently strong moral law and public policy begin.
And at least some states already recognize precisely this principle in surrogacy law.
Virginia expressly provides that any surrogacy contract provision “requiring or prohibiting an abortion or selective reduction” violates public policy and is void and unenforceable. Massachusetts similarly protects a surrogate’s authority over decisions concerning her own body and pregnancy.
Children are not contractual products
There is another fundamental problem with treating abortion as an enforceable contractual obligation.
If government itself cannot physically force a woman to undergo an abortion, should private parties be permitted to accomplish the same coercion by threatening enormous financial liability if she refuses?
“You’re free to refuse the abortion — but we’ll sue you for six figures if you do” is hardly meaningful freedom.
A surrogate currently under law may agree to carry someone else’s biological child. That child, however, should not be considered property under the law. If there is a discovered “defect” (such as a congenital heart defect), that does not permit the adults involved in the pregnancy to return the defective product to the manufacturer.
This very crass way of viewing children as commodities exposes a deeper problem with applying ordinary commercial concepts to human reproduction. What happens when a child doesn’t conform to the expectations of the contracting adults?
If you order a blue automobile and receive a red one, contract law provides remedies for a product that doesn’t conform to the agreement.
But children aren’t products.
Pregnancy isn’t manufacturing.
And disability isn’t a breach of warranty.
There are also three human interests involved in surrogacy — not merely the two sides negotiating the agreement. There are the intended parents, the surrogate, and the child.
The child didn’t negotiate the contract. He didn’t sign it. Yet his life may be the most significant interest implicated and exploited by it.
American law should never reach the grotesque conclusion that the continued life of a child constitutes the legally cognizable “damage” caused by someone’s breach.
The Law Should Protect Life
Human dignity doesn’t come from a contract. It comes from our Creator.
Genesis tells us human beings are created in the image of God. Psalm 139 describes God intimately forming human life in the womb.
A child’s value isn’t determined by whether he or she is wanted, healthy, convenient, “perfect” by subjective desirables, or consistent with somebody else’s expectations. A disabled or unwanted child isn’t a defective contractual product.
The child is valuable because he is human.
This is why law must recognize that some things are simply beyond our authority to bargain away.
This is what our Founders recognized in the Declaration that fundamental rights are “inalienable” — some rights are literally not able to be alienated from us through selling or purchase. We can freely exchange property. We can’t freely exchange our rights or another human’s rights away. This is exactly the moral argument against slavery. Commoditizing children through abortion and contracts is just as morally reprehensible.
Freedom of contract matters but must be morally limited. Human beings are not products. Children are not contractual deliverables. And refusing to end a human life should never constitute an enforceable breach of contract.
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