A British Columbia couple creates an embryo using in vitro fertilization (IVF). They contractually hire a surrogate mother to carry the child. Then they discover, through prenatal screening, that the baby has Down syndrome. The couple asks the surrogate mother to terminate the pregnancy. The surrogate disagrees with their decision. According to their agreement, the surrogate can continue the pregnancy, but she will become responsible for raising the child. Then, the surrogate mother, citing problems it would create for her own two children if she kept the baby, goes ahead with the termination.

I know about this story because I receive an e-mail every day from Google about news related to the key words "Down syndrome." Our daughter Penny, who is four, has Down syndrome. Any given day offers me heartwarming stories about the accomplishments of a young adult with Down syndrome. Most days bring up some questions about genetic testing and prenatal screening. And every so often a story appears, like this one, that raises a host of ethical and legal questions.

Had the couple and surrogate mom gone to court, the scenario would have pushed the limits of abortion law. Whose baby was it? According to the Canadian and U.S. court systems, the legal right to an abortion is not dependent on biological parenthood but on the privacy rights of the woman carrying the baby. As a result, a father of a child has no legal right to prevent (or insist upon) abortion. Similarly, the surrogate mother retains the right of choice, even though the parents who created the baby had entered into a contractual agreement with her.

Such an agreement has never been tested in Canada before, but legal scholars assume that family law—by which biological parents ...

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