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Yeah I see what your saying. My understanding, though, is that she not only did not have the money to return but also violated the contract in so many different places it kind of blew up the whole surrendering idea.
I don't know all the details, but if the only way to honor the contract is to be forced to get an abortion, people shouldn't be allowed to write such contracts.
Contracts do not require specific performance. At worst, she would be required to pay monetary damages for not getting the abortion, which a court would have to work out somehow.
So medical issues found during the pregnancy, including what was found, were listed in the contract as things the parents could choose to abort for. The lady signed that contract and agreed to those terms. When those terms went into action well she opposed.
I am against abortion, but at the same time, you are only as good as your word. If you sign a contract agreeing to these terms and then turn around and fail to uphold them, well, that's a huge issue.
Those terms should not be legitimate
I can't write a contract where I become your slave in certain conditions, or you get to kill my child under certain conditions
I'm not sure I can even write a contract where you get a pound of my flesh for whatever reason
The first two are because you can't form a binding contract that requires illegal activity. The abortion stipulation would not be binding if abortion were illegal.
The pound of flesh clause is probably not binding for some silly health and safety reason. Either way, you wouldn't have to give the flesh, just the monetary equivalent.
I'm now inclined to ask @siggy47 to weigh in on our amateur legal theorizing.
It’s definitely a huge issue, but I don’t think it should be grounds for much. She imposes no extra cost on them by carrying to term and keeping the baby.
If damages were stipulated in the contract, then she would clearly be subject to those.
violated the contract in so many different places
Before they requested the termination? In my mind, that's when they were effectively ending the agreement and she could legitimately begin to claim guardianship. If she was already violating the terms, then I have no idea.
That was a thorny one. I could imagine it having gone either way, since you could argue they had essentially abandoned the child to the surrogate. She would presumably have had to give them a refund though.