Carol Sanger (Columbia) – KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

Contracting for Abortion

KCON 12: Intimate Contracts, Consent, and Commodification Panel

Carol Sanger, Barbara Aronstein Black Professor of Law, Columbia University

Contracts between intimates or about intimate subjects are now a regular feature of regular contract law. I have recently written about post- adoption visitation agreements, where birthmothers agree to place a child with an adoptive couple in exchange for visitation rights; Bargaining for Motherhood, 41 Hofstra L. Rev. 309 (2012). This paper concerns not the acquisition of a child, but the promise not to have one by agreeing contractually to abort a pregnancy in exchange for consideration.   The topic arose as part of my inquiry into what men take into account when decisions about the disposition of an embryo or fetus is up to them, in such matters as contested embryo cases.  Another source of these decisions is found in surrogacy contracts when the commissioning man (or couple) bargains for the surrogates promise to terminate the pregnancy upon prenatal testing that reveals an anomaly specified in the contract as triggering the abortion provision.  While such contracts have not been specifically enforced, they remain a common feature of surrogacy contracts, perhaps serving an in terrorem function. 

Yet in an interesting 1987 case, L.G. v. H.A.G., the Missouri Court of Appeals upheld a contract between a father and his adult unmarried daughter where he promised to reinstate her in his will if she terminated her pregnancy.  She did, but he didn’t.  The Court found there was nothing against public policy or illegal per se in the daughter’s promise. Indeed, “family harmony and reconciliation were also involved and both … naturally encouraged as a matter of public policy.”  The case puts women’s abortion decisions in an economic framework, and suggests that fathers too have interests in reproductive decisions for which they too are willing to bargain.  

This paper draws from the chapter “Fathers and Fetuses: What Would Men Do” in my new book About Abortion: Terminating Pregnancy in 21^st Century America (Harvard U.P.,  March, 2017).