Ordered by contract to abort, a surrogate mother refused and saved the child

On September 22, the Supreme Court of the United States declined to intervene in the dispute between a California couple and the woman they had hired to carry their child. The justice who received the emergency application set it aside by a brief order, without stating reasons, as is customary in such a procedure.

The dispute arose from a refusal. Diagnosed before birth with a grave heart malformation, the child was, under the terms of the surrogacy contract, to be aborted. The surrogate mother refused. She left California for Texas, where abortion is restricted, and there gave birth to a boy in August. Since operated on at a Dallas hospital, where his biological parents also travelled, he is now five weeks old.

Recognized as the child's legal parents by a California court, the couple sued the surrogate for breach of the contract, which provided that she would abort in the event of a diagnosis of fetal anomaly. She has sought guardianship of the boy, arguing that those who had wished to end the pregnancy would not provide for his care; the parents dispute this and affirm that they intend to ensure his medical treatment. She further pleads that the case should have been tried in Alaska, where she resides. These points remain disputed, and we report them without settling them.

What the Church has always taught

The fifth commandment knows no exception of condition. “Prohibition to kill whomsoever it be! The Law extends to all. There is no one, whatever be the lowliness of his condition, who is not protected by it,” teaches the Catechism of the Council of Trent. And this prohibition does not aim only at the hand that strikes: it is also “forbidden to contribute thereto by one's counsels, by one's means, by one's help or in any manner whatsoever.” The same catechism expressly places the child borne in the mother's womb under this protection, counting guilty the one who causes “the death of her child.” God, it adds, so “detests homicide” that He “will avenge the death of man.”

The Church has always held, moreover, that the child is a gift and not a piece of merchandise. Marriage, the same catechism recalls, is distinguished from “the other contracts or agreements for which man and woman bind themselves to render each other a mutual help, by money or otherwise”; and children are desired there not as goods that one acquires, but “to give to God believing and faithful servants.” Those who “voluntarily oppose themselves to this end of marriage,” it concludes, commit “a very grave fault.”

The measure

A contract that commands the death of a child the moment he is found sick makes his right to live a revocable clause, hanging upon his health. This is precisely what the divine law forbids: it protects the innocent whatever “the lowliness of his condition,” and a malformation is a wound to be healed, not a ground for putting to death. To demand this abortion is, in the very terms of the catechism, to contribute to homicide “by one's counsels” and “by one's means,” even though — the living child attests it — death did not follow.

To bring a child into the world under contract, with a clause providing for his suppression should he be born other than what was ordered, is to treat him as a defective product to be returned. The transmission of life is not a market; the child is not owed, he is received. In this, the very enterprise of surrogacy runs head-on against what the Church has always taught of marriage and of the welcome of children.

There remains one act, in this affair, that accords with the ancient law: the refusal to kill. To have carried the child to term and to have saved him, against the contract, is the only decision that honored the innocent. We pronounce nothing upon souls; we measure acts. And that one is upright.

What the faithful must retain

That every child, healthy or sick, is covered by the fifth commandment, and that no contract, no diagnosis, no court can lift that protection. That life is not negotiated and the child is not ordered. Surrogacy, which makes the child the object of an agreement and his health a condition of survival, can find no favor before this doctrine. There is nothing here to claim against the Church, and everything to hold with her.

Sources. Catechism of the Council of Trent (1566), on the fifth commandment (“Thou shalt not kill”) and on the sacrament of Matrimony; Genesis IX, 5.