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Biological parents of baby Gabriel suing surrogate mother after she refused abortion
Jenna Ellis: I love talking about the things of God. Because of truth and the biblical worldview, the U.S. constitution obligates our government to preserve and protect the rights that our founders recognize come from God, our creator, not our government. I believe that scripture in the Bible is very clear that God is the one that raised up each of you, and God has allowed us to be brought here to this specific moment in time. This is Jenna Ellis in the morning.
Jenna Ellis: Good morning. It is Friday, August 21st, and we need to talk about the state of, contractual killing in America. Yes, this is actually happening in the context of surrogacy. And, this is something that you would never think would be allowed in any other context. So why should it be allowed in this context? So you've heard of baby Gabriel, from Texas, and, the surrogate mother who refused to abort him after he was diagnosed with a congenital heart defect around 20 weeks. And now the biological parents of baby Gabriel are suing the surrogate mother for more than $100,000 after she refused their demand to kill him through abortion. So the couple, this coming from LifeNews.com, the couple had agreed to pay West $60,000 to carry their child under a contract that include, included an abortion clause allowing them to end Gabriel's life if there were issues with the baby. So now they are asking a judge to award them more than $100,000 in damages from the surrogate mother for breaking the deal, plus unspecified damages for her alleged, quote, malicious, outrageous conduct. Let's welcome in Father Frank Pavone, who is founders of Priests for Life. And this is just so disgusting, first of all, that these types of contracts are, are even allowed to exist and be legally enforceable, potentially in the United States. And the fact that now the birth, or the biological parents are actually seeking to enforce this type of clause because this surrogate mother saved her child's life. I mean, this. This is so unspeakably evil.
Jenna Terplates: People are tampering with how human life should come about
Frank Pavone: Yes, it is, Jenna, and thanks for inviting me to talk about it. You know, what we see here is, is people are playing with fire and getting burned, and the fire they're playing with is tampering with how human life is supposed to come about. So if we take a step back and look at the big picture, moral, philosophical, spiritual things going on here, the problem ultimately is this. God has set up a in which human beings come about. It's through the union in love of two other human beings. And, and, and it's always a gift. You know, it's like, let's say people are going to do it the traditional way, right? Okay, so person A loves person B, man and woman. By the way, no meddling with that either. And they say we want to have a child. You know, so, I mean, they, the woman can track her, you know, fertile days in the cycle, etc. But even so, no matter what they do, it's always a maybe, right? I mean, it's like, okay, we're going to come together in a loving union at a fertile time of the month. Maybe God will grant us the gift of a child. And that's why God set it up that way. The child is a gift and the child is a person. Now, if the child is a person, that means the child is not an object to be put together in a scientific laboratory or in a petri dish. Moreover, the mother is the mother of that person. And what we're seeing here is contracts that are trying to split motherhood. You take care of the bio, I'll pay you to take care of the biological part of this. You carry the child, and then I'll be the parent later. Oh, it's my child. Why? Well, because I want a child and, you know, I could contribute the genetic material or maybe even somebody else can, you know, and we're tampering, we're playing around with, with the origins of human life. And we expect it to work. It's a Tower of Babel. It's not going to work. And what we see now is the confusion of the languages. God came down and confused the language. We hit a brick wall here. We're in a moral quandary. We're in a dilemma. Nobody, no amount now of suing or countersuing, no number of judges or courts are going to be able to fix this. The feathers are out of the pillow. This is a mess. And it's going to continue to be a mess if we think we have a better idea for how human life should come about than God does.
Jenna Ellis: So, well said. I could not have put that more perfectly and it is so true that the nature of conceiving children should never be subject to a contract that reduces it to commodification and to production and to, these types of moral and ethical questions surrounding abortion. And it's going to be very interesting to see, and I'm grateful that at least this is being disputed in the state of Texas, that hopefully will view this, more morally and ethically than, perhaps a blue state judge would. but what's also fascinating to me here, two things. First, that, as I mentioned off the top, that, in any other situation, if you have a contract that includes a termination of life clause or basically contract for killing, those are unconscionable and are never legally enforceable. So hopefully that will be one of the defenses raised here. And that somehow, you know, society thinks, or there's at least a segment of society that thinks that under the, the context of an unborn child, that somehow that's different. Right? And it's not. And the law should follow that. But second, that if this were the biological mother carrying the child and chose to have an abortion, the. The law in a lot of states right now would not see that as a contractual sort of killing, but as a fundamental right of a parent. And this is where the law around abortion absolutely needs to catch up with reality, that if we are so offended, as we should be, that there is a contract that literally contemplates murder in the event, a discoverable defect of the child that allows them to then be killed at the whim of the parent, well, that's happening without it being spelled out in black and white all over the country, and we need to make that illegal.
Frank Pavone: You know what, Jenna? two things. First of all, yes, the blind spot here, it's discrimination against the unborn. If contracts cannot be legally binding when they involve the agreement to kill a human being, well, then why are they okay, in the case of abortion, Terrible discrimination against the unborn, the most unjust form of discrimination. That's the problem that has to be fixed.
In various states now we have constitutional amendments allowing total freedom regarding reproductive decisions
But, you know, there's another interesting dilemma that comes up, and as you were just talking, I thought about this. In various states now we have these constitutional amendments allowing, a total freedom regarding reproductive decisions. That, of course, includes abortion. Some of these amendments are explicit about it, including abortion. Others, it's implicit. There, are more on the ballot this November in, Virginia, Idaho and Nevada, and in about 10 states they've passed. Okay. Now, some of them are very explicit and Again, they're all implicit that any decision regarding reproductive, your reproductive life includes a decision, includes the right, quote, unquote, not only to terminate your pregnancy, but to continue it. To continue it, the sovereign right of that mother carrying the baby. So how does that, conflict with this? Isn't this interesting? What if this mother is in a state that has that constitutional amendment, pro abortion constitutional amendment, but the right to make reproductive decisions includes not just the right to end the pregnancy, but the right to continue it. So she asserts her constitutional right in a state, I have a right to continue my pregnancy. See, many people are looking at this as well. She went to Texas and Texas says the unborn or protected abortion is banned. All right, that's one way to look at it. But what if it's in a pro abortion state where the right to continue one's pregnancy is now in the state constitution? How would that deal with now a contract that says, well, you know, under certain circumstances you have to abort that baby.
Jenna Ellis: And yeah, and this is where the natural conflict of the, of these ideas will compete. And you end with a clash of, the ideology. When the, the ideology of abortion runs up against reality. Because if there are parental rights, that are fundamental and constitutionally protected, on the state level as well, then what happens when the birth mother, wants to go against the wishes of the biological parents? And this is exactly, by the way, why McKenna, West, who is the birth, this instance for baby Gabriel, went to Texas from Alaska, because Texas is a state where the law recognizes the woman who gives birth as the mother. And so even though right now in this, situation, unfortunately, ah, custody has gone to the biological parents who are the ones who literally contracted and demanded to kill the child. So that's completely outrageous and illogical, to put a child back in the hands of two people who wanted him killed. But, that's an interesting question to raise. At what point if you are a surrogate woman and you are renting out your womb, then at what point does the law recognize that you are actually a birth mother? And this is why tampering with the natural law and the natural process of procreation and childbirth becomes so ethically untenable because you get into these questions that naturally you never would under God's design.
Frank Pavone: Well, you know, and M. Jenna, the other side of the coin is very interesting too. What if all the parties involved are in one of these states that has one of these constitutional amendments for unfettered abortion? And so the surrogate mother is carrying the baby. But then she, for whatever reason said she decides she wants to abort the baby. Now I'm saying now this might seem like a slam dunk. It's like, well, wait a minute, she just signed a contract to bring the baby to birth, yet she did, but in a state that gives her a explicit constitutional right to have an abortion. And remember, the wording of these amendments says without any delay, hindrance, obstacle whatsoever from any source.
Jenna Ellis: Which might include a contract.
Frank Pavone: What controls, doesn't the constitution control in that case? So if the contract was made in that state, isn't all contractual law subject to the state constitution? So I mean, these are important, these are interesting legal questions. Like you say we're running and it goes back to my original point. We get ourselves in ethically unresolvable, quandaries when we start messing around, with God's plan. And then of course there's another dimension too. What if, she went ahead and had the abortion? Okay, are these, are these. So the birth mother has an abortion. Are the original parents or the adoptive parents are now responsible for any of the negative, physical, psychological, emotional after effects of abortion which only that birth mother is going to bear? Well, of course I shouldn't say only because if they said to her abort the child, they're going to have lifelong grief as well. But I mean, you, as you know, we deal with this every day, right? I oversee the largest ministry in the world for healing after abortion. We also have the Silent no More campaign where people speak out about the grief and devastation and the physical and emotional harm. And for some of these harms, you know, they, they have, you know, lifelong infertility, for example, could be one of the after effects of abortion, perforated uterus. It could be any number of things. Who's responsible? Can she then go back to the parents that made the contract with her and say, hey, wait a minute now I'm suffering all these effects. You're going to help me pay for my medical bills? You know, can I countersue you. These are all big questions.
Jenna Ellis: Yeah, yeah, they are. And it just, it is so wrong that we are even having to contemplate, and legally adjudicate these types of questions that again would never arise in the context of the biblical family. And when you have a father and a mother, in the context of marriage, if something goes wrong in their pregnancy, obviously not including the choice of abortion, which is wrong, but isn't, isn't ever, you know, medically necessary. that you know, you have, if you have a miscarriage, if you have medical complications, the biblical family has the way to deal with that, which is that you say together you love each other in sickness and in health and for better or for worse, and you go through this together instead of having to determine whether the Constitution or the contract is, superior and more legally enforceable in dealing, you know, with all of these other issues that are so tremendously heartbreaking just because we have strayed so far from God's design of the family. And, and, you know, I really applaud, McKenna west for refusing the request to abort and for giving baby Gabriel, Gabriel the chance at life. And I hope that Texas will set a very good precedent to say that this type of clause is unenforceable because it's unconscionable. That's what the law needs to start reflecting and saying. You can't just contract away your, the, the ability, the right that the child has to life. And perhaps that type of legal precedent will end up having an effect on some of these, just outrageous abortion laws that should protect the life of the child. But we've got to take a break here. I'm going to, keep Father Frank Pavone on for the next segment. We will be right back with more here on Jenna Ellis in the Morning.
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Jenna Ellis: Welcome back. I'm here still with my special guest, this morning, Father Frank Pavone. And we're talking about the ethical questions when we start meddling with, ah, the beginning stages of life, ah, human life, which as we know every human being is made in the image of God and has inherent dignity, worth and a right to life from the moment of conception all the way until natural death, regardless of contracts to the contrary or whether surrogacy is involved or all of these other ways that we try to meddle or with God's design. And the same can be said, Frank Pavone with some of these contemplations and ethical questions on the end of life. so I had a, an opportunity to have a, you know, really fascinating conversation, with a Neighbor of mine. And you know, we were just at the dog park and talking about the horrific nature of testing on, on animals and the the beagles who have all been saved, and rescued, you know, from these horrendous practices. And her comment, and she had previously told me that she's a Christian, and her comment, you know, was we should never do anything like this on living creatures. It's terrible. And I said yeah, and I can't believe that, you know, recently the Massachusetts governor is now, you know, allowing abortion until the moment of birth. And her immediate response was, well that's different, right? And actually advocated for abortion under this assertion initially that she can't impose her medical judgment. And you know, well, what about the life of the mother? And you know, and I gave her of course all of the responses and the statistics of, you know, how the vast majority of abortions in America are by choice for perfectly healthy children, you know. And and so we got to the point though in the conversation where, you know, and she's throwing out all of the talking points and the regular objections and this is somebody who's supposedly a Christian, which is a whole other problem with the conversation. But she then at one point said, well, you know, this is the problem with the pro life whole movement is that you all, and of course this is such a generalization. You all only care about the unborn. You don't care about what happens to human beings, you know, after they're born. I mean, look at how much money is being taken away from school children for their school supplies. And I said, okay, wait a minute, you are equating children not having access to crayons with the legal ability to kill a child until the moment of birth. I mean, where's your compassion for the five month old, you know, or the five week old, in the womb, the same way that you do have the five year old, you know, school child. Of course she didn't have a response to that, but her whole overarching premise was that somehow, you know, the pro life movement doesn't care.
The founders explicitly rejected the notion that human rights are unalienable
And so I want to talk about that and how, you know, this whole idea of being able to contract away the rights of a third party, or even your own right to life is something that the founders expressly and explicitly rejected when they said, and they recognized that it's not their declaration, it's a recognition of God's declaration that our rights, including the right to life, is unalienable. It can't be, removed from us, bought, sold, purchased, contracted away. And that includes things like physician assisted suicide, completed life bills, and we have to have that same, consistency throughout the span of protections and being pro life, across the entire spectrum of human life.
Frank Pavone: Yes, that's so right. You know, first of all, in regard to the accusation, we only care. We don't care about the babies after they're born. I'm sure there's some firefighters, in our audience, okay? And we applaud the firefighters. God bless you, men and women. What a. What a, what a. It's a vocation. do we ever hear people say to firefighters, hey, you guys go in? Yeah. You know, you go in and you. You fight the fire and you carry people out of burning buildings, but you don't care about those people after the fire. Do we ever hear. Do we ever hear people say that, you know, or even, like, you know, I had heart surgery a few years ago? Right. do we ever say to the surgeon, you don't care about the people after the. After the surgery, you saved their life, but, you know, that mean then you saved their life in a fire and a surgery or whatever, you saved their life. So now do you have to. Does that mean you have to follow them throughout the rest of their life and take care of all their other needs, too? I mean, it's a ridiculous way of looking at things. And, you know, first of all, it's obvious, contrary to fact, you know, we do care. We don't say to Alcoholics Anonymous, you don't care about people who aren't alcoholics, et cetera, et cetera, et cetera. It's just a gratuitous, judgment on people, which the Lord says we shouldn't be doing anyway. but yes, the whole idea of a contract being able to alienate the right to life goes against, like you just said, what the word unalienable means. I like to describe it to people this way. Can you take any action or can anyone else take any action to make you not human? And it's like, I could fantasize about it, you know, like people do when they think they're, you know, I identify as a cat, you know, all this other nonsense. But can anyone actually do something or can you actually do something to make yourself not human? The answer is obviously no. Now, that's how we have to look at human rights. Because the reason human rights are human, what it means is that they are as attached to you as your humanity itself. Just like nobody can change you into A different species. Nobody can say, you don't have your human rights. And those rights, of course, begin with life, both by logic and by the explicit Declaration of Independence. So that's how we have to understand human rights. And our founders understood this. It's a philosophical, moral point, but it's at the core of everything else. Because if in fact our humanity, human rights, are alienable, if they can be removed from us by someone else, and it might be an individual or some kind of power like a court or a king, or if we can throw them away ourselves, then a big question opens up, Everything becomes negotiable. And then how does that negotiation occur? And how are the weak then protected from the strong? That becomes the big question. And this is why I always say, in the context of the pro life work that I do, that unless the unborn are protected because they are, by the way, the only group of people here in America that are, you know, the only group of undeniably human beings that we are saying do not have the right to life unless they're protected, then all of us are in danger. We can't pretend to be holding on to the inalienable right to life ourselves if somebody else is being deprived of it at any stage of life. it's the principle which if you break it at any point, it is broken at all the points simultaneously.
Jenna Ellis: Absolutely. And this is where, you know, if you start saying, well, some humans, ah, based on their age, then you can start saying, well, based on their nationality, like Jews and the Holocaust, or their skin color like slaves, or you know, their their gender, like, you know, the the commodification of women, you know, all of these different various ways we try to categorize, humans into worthy and unworthy. If we do that at any. For any reason, at any stage of life or any specific category or of, and try to distinguish human beings as some more human than others, then we ultimately get to the abridgement of the right to life, at which we should never ever get to for any reason whatsoever. A human being is a human being, regardless of any other m. Intrinsic characteristic or distinguishing factor throughout their lifetime. you know, like we. The. The completed life bills are just so ethically horrendous to suggest that somehow value to society, which is completely subjective, should have any weight or bearing on a person's right to life, or even the right to, Because they. They don't even have the right to take their own life. I mean, the right to life is so sacred that we as a society recognize that we cannot even abridge our own right. in that instance, I mean, there are a lot of other rights that we have, that, you know, like, like our property rights. Well, we can sell those, we can, alienate those from us. But the fundamental right to life, we can't even alienate from ourselves because we are living and human. And those are two factors that don't change until God himself says that, you know, that your, your days are. Numbers are numbered and I hold your life in my hands. And this is why it is so sacred and so fundamental. But also, Father Frank, why so many of the anti life crowds want to either, at all stages of life, they attack one of those two prongs. Either the humanity of the individual. They want to say, you know, call a baby a fetus because somehow that dehumanizes them. Right. And they want to deny the humanity or they want to deny life.
Jenna Bennett: Christians need to be involved in policy making and lawmaking
Like a lot of these, issues that are coming up with organ donors, or with you know, brain death or with physician assisted suicide or some of those things. They want to deny, the life. And both of those prongs are attacked during the pro abortion arguments and the anti life, anti human arguments. But we see one of those two prongs is always attacked when the, the left or the the anti life, anti human advocate are advocating for some sort of legislation or law that would foreclose human life.
Frank Pavone: Yeah. And you know, a whole host of other problems arise when we say that we can choose death. You know, looking at it as you brought up at questions, of physician assisted suicide, euthanasia, etc. you know, when people start talking about the right to die, you know what I say, Jenna? And it the right to die, worry you won't miss out on it as soon as you declare a right. You know, people want to line up and make sure they're not going to miss out. We do not have a claim on death. Death has a claim on us. So we can't kill people, but there comes a time when, you know, we die or the body starts breaking down or we get some disease, et cetera. So then the question becomes, well, we know we can't take a life deliberately, we know we can't take our own life deliberately, but then how much do we need to do to preserve our life? And that's where there can be legitimate limits. You know, I mean, there's no, there is such a thing as a worthless treatment. You know, you Ask, And nobody knows what medical conditions we're going to face someday. But when you're in the situation, obviously you can have the medical evaluation. You know, is there a treatment that can provide you some benefit? But there may be, all kinds of treatments that won't. So there is such a thing as a worthless treatment. You could say no to it, but there's no such thing as a worthless life. And that's a distinction that needs to be made. We don't have to use every and any conceivable treatment, machine intervention, surgery or what to continue our lives. But neither can we directly take the life. And where that boundary is, is I think the most important, prudent, practical advice people need to keep in mind is that you can't make that decision until you're in the situation and you know, the m. Medical, the medical, condition. And if you're unable to speak for yourself at that moment, that's why it's wise to appoint somebody in advance who understands your moral convictions and will be able to speak for you and accurately represent what you really want.
Jenna Ellis: Yeah. And this is where again, you know, some of these contracts, like the power of attorney over, you know, medical decision making and some of these other things, ah, pose really serious ethical questions. And this is why Christians always need to be involved in policy making and in lawmaking. because if we turn over any of this just to the secular humanists, or those who say, well, you know, the right of contract, that's all that matters. and all that the state should be able to do is arbitrate those contracts. Well, what happens in the instance of someone like M. McKenna west, who is subject currently, until hopefully the state says no, it's unconscionable, it's legally, unenforceable, you subject to a condition of a contract that is absolutely unethical and morally evil. I mean these are things that we have to be consistently engaged in, as Christians, because it's not as simple as saying, well I'm for pro life because I care about babies. Great, so happy about that. But it extends further into all kinds of different ethical situations and arguments that we really need to be aware of. And we really need to encourage our legislators and also our judges, to ensure that they're looking at this biblically and accurately. And so, how.
Father Frank Pavone: We are more of a patchwork on abortion issues
Last question for you. I'm Father Frank Pavone and I so always appreciate your time on these important topics. where would you rate Our current, on the state level, overall, on some of these things, at least in terms of being able to push for legislation that accurately reflects these unalienable rights.
Frank Pavone: Oh, very mixed picture. We are really more of a patchwork on this than ever before, you know, when it comes to taking the lives of the unborn. We had a really big problem when Roe v. Wade came down. but then we fixed that. Took five decades, but we fixed it. And now what that has led to, of course, is a patchwork where there's a good aspect to that, because now people are, in fact, able, with their elected representatives, to protect these babies. But it's a patchwork, and I would say more of a patchwork than ever before. The same thing is true, you know, in regard to the other end of life when it comes to euthanasia, assisted suicide, and actions that would end a life at its later stages. we almost had a Roe v. Wade of that assisted suicide, euthanasia back in 1997. it was not as well known a case. Certain states were starting to legalize this. But in 97, the court faced the question of, you know, are we going to declare it to be a constitutional right, you know, to end your life? And they said no. Now, what has happened since then in the last 30 years is that again, we have a patchwork of different states, some states going way, way in the wrong direction, and other states, being more protective. So America right now, is a very much of a checkerboard when it comes to these matters. We do need to get to the point where we recognize the federal government does have a role. there is something here rooted in the Declaration and in the Constitution. But I think we get to that federal, policy by working in the states and getting more consensus among the states. Obviously, one little thing that people may also want to keep in mind, be aware of the distinction between a living will and a will to live. living wills can be dangerous. They often try to put, predict the future. They might put you in a legal quandary of, you know, not being able to get the care that you need for yourself or a loved one. Be very careful with those documents. But there is a document called a Will to Live at our website, Priests for life. There's priestsforlife.org willtolive and people will see there's documents that have been prepared for each state according to that state's laws. Good thing to follow up on from this discussion. And secondly, you know, I was very involved. As you know, we don't have time to go into it now with the Cheri Schiavo case back in 2005, I was, one of the few people who could go into her room. I was an advisor to the family and an advocate for her life. and one of the key things that resulted from that was, you know, we have to pay more attention to how food and water are being categorized in state law. And I would push for change here where we do not categorize feeding a person or giving them, hydration. Don't categorize that as medical treatment, because a person can refuse medical treatment, but you're not allowed morally to starve yourself to death or to dehydrate yourself to death. And that's what happened to Terri. It wasn't a disease. It was a direct starvation and dehydration. So let's not categorize food and water. When I come, come back from lunch today, I'm not going to say, hey, I just came back from my latest medical treatment. You know, it's not a medical treatment. It's basic care, like breathing oxygen, you know. So, Jenna, so many important things to say, but America is at a patchwork point now. That's why our elections are always so important, and that's why programs like this are always so important as well. Thanks for addressing these issues.
Jenna Ellis: Thank you so much. And we've got to take a break here, but so well said. And we've got got to continue at every stage and policy and state pushing for pro life because this matters, to every human being who's made in the image of God, inherent dignity, worth, and the right to life. Human life absolutely matters. We'll be right back. We're living in a defining moment in history. Today, a woman facing an unexpected pregnancy can order the abortion pill online, often before anyone has had the chance to tell her she is loved, that she's not alone, or that there is hope. That's why you are needed right now. You were made for this moment. At PreBorn Network clinics, mothers are welcomed with compassion, practical support, and a free ultrasound. And when she sees her baby and hears that tiny heartbeat for the very first time, fear often gives way to hope. In fact, more than 80% of abortion vulnerable women choose life after seeing their baby on an ultrasound sound at a PreBorn Network clinic. That one moment can save a baby's life and open a mother's heart to the hope of Jesus Christ. This is our moment to stand. For those who cannot speak for themselves, just $28 provides one life saving ultrasound. $140 helps rescue five babies. Please don't wait. Dial pound 250 and say the keyword baby. That's pound 250 baby. Or give [email protected] afr that's preborn.com afr Together we can save lives one heartbeat at a time.
Jenna Ellis: You cannot contract away a human life under contract law
Welcome back to Jenna Ellis in the Morning on American Family Radio.
Jenna Ellis: Welcome back. And I want to talk a little more deeply about this point about contract law and the fact that you cannot contract away a, a human life. And so America believes strongly in the freedom of contract and the free alien ability of property. But freedom of contract has never meant that every promise you put on paper can become legally enforceable through the court system. So for example, as we've talked about, you can't hire someone to commit a crime and then allege a breach of contract if they don't follow through with it and expect a court to enforce that. You can't contract around certain fundamental public policies. And the government should certainly never use the power of a court to punish a woman because she refused to abort a child. I mean, this is just wild that we are even in the moment, in the state of Texas of contemplating this, and we're still talking about the McKenna west case, who entered a gestational or surrogacy arrangement, with two biological parents of the child. And approximately 20 weeks the baby was diagnosed with, a congenital heart defect. And so the dispute arose when the intended parents, sought to enforce termination of the pregnancy and killing the child. And west, the birth mother ultimately refused. So baby Gabriel was born on August 12, and we are grateful to the Lord for that. And has undergone the first of multiple anticipated heart surgeries. The state of Texas is protecting, his right to life saving surgery. And so now though, the intended parents are seeking more than $100,000 in damages based on alleged breach of the surrogacy agreement that she refused, to abide by this abortion provision. And so the central question for us is how can a court use contract law to impose monetary or other liability on a woman because she refused to end a human life? And my argument of course, is that it shouldn't. And contract law already has limits. And so this is where I'm going to kind of put on the lawyer hat and start with the basic proposition that freedom of contract is not absolute. And so, the restatement of contracts are basically what contract law started out as common law. And then of course we needed a restatement of the law and that's where we get this term, the restatement of Contracts. but it's a provision, within contract law that recognizes that a contractual term can be enforceable when the interest is enforcing. it is, consistent with public policy. And so a contractual term can be unenforceable when the interest in enforcing it is outweighed by public policy and, the principles that undergird civil society. So courts consider, among other things, the strength of public policy and the seriousness of the conduct implicated by the agreement. And so this is not some new pro life invention. This isn't, completely novel territory. It's a basic feature of American contract law law of unconscionability and unenforceable, provisions. So the murder for hire analogy is, is fairly on point and pretty forceful. Because imagine for example, that, that you sign a contract saying that you're going to pay $100,000 to kill a third party. The assassin that you hire takes the money, but ends up, reneging, saying, you know, I'm getting cold feet, I don't want to do that, that. Can you actually sue him in a court of law? Well, of course not. You don't get to walk into court and say, your honor, we had an offer, acceptance, consideration. We had all the elements, legal elements of a contract. And consideration under contract law, by the way, is, is a valuable exchange. So something for something is a contract. Right? so saying, you know, this person promised, to kill this third party. I promised to pay him and he breached. The problem isn't whether we formed a contract or an agreement. The problem is the object that we are asking the court to enforce. The courts are not going to enforce bargains whose performance violates criminal law or sufficiently strong public policy. And so this is where public policy must extend to cover unborn children. The Supreme Court itself has quoted, the long standing principle that when an agreement grows directly out of an illegal or immoral act, courts will not lend their assistance to its enforcement. And in fact, the people who are part of that, overall conduct can be, can be charged at times depending on the, on the conduct with criminal conspiracy. Right? So this doesn't mean that, oh, hey, we had a contract, everybody was on board. So you can't criminally punish us for the object of what we were actually carrying out. So, murder for hire, for example, doesn't become lawful just because everybody understood the terms. The provision was negotiated, lawyers drafted it, money or other valuable consideration changed hands, or someone, just later changed their mind. Consent cannot transform an unlawful purpose into an enforceable contractual obligation, especially when that unlawful conduct is immoral. So here's where this issue becomes, really necessary to consider when it relates to surrogacy. So the other side, of course, anyone listening to this, who's, who's, pro abortion, pro baby killing, will immediately say, well, abortion isn't legally murder. And as a description of current criminal law in jurisdictions where abortion is still lawful, sure, that, that's, that's an important distinction, but it still is absolutely immoral. And this is the reason that abortion should be criminalized in every jurisdiction. So we don't reach the question, the legal question of whether basically murder for hire contracts in the context of an abortion clause in a surrogacy agreement can be legally enforceable. So this is where the principle comes into play that contract rights stop where sufficiently strong law and public policy begin. So if the government cannot specifically force a woman to undergo an abortion, which obviously it can't, it should be, then, we should consider the question, should it be allowed to accomplish effectively the same coercion indirectly by threatening enormous financial liability for a woman who refused one? That's the key. This isn't the government merely allowing private parties to disagree. This lawsuit is asking the judiciary, the state, to enforce the bargain or the negotiated terms. A damages judgment would mean that you had. The birth mother would have the legal right to refuse abortion. But in any other context, but because she exercised that right when a contract expressly said that she couldn't, the government would order her to pay an exorbitant amount of money, or any amount of money at all, any sort of liability that is attached to that refusal. And this raises profound questions about bodily autonomy, public policy, and the state's interest in human life. And I would ask the pro abortionist, I thought you came about the woman, her bodily integrity, and you know, what pregnancy, does, does to him. What about. What about what abortion does to a woman? And it's important to note as well that we actually do have some states that recognize this principle. And it's a really strong point because we don't have to argue entirely from theory or, borrowing this principle to then cover, the idea of a surrogacy. Contrary Virginia law, for example, expressly provides that any contract provision requiring or prohibiting an abortion or selective reduction is against the public policy of the commonwealth and is void and unenforceable. This is really remarkably direct. And even Massachusetts, remember this state that just recently, passed legislation that now allows for abortion until the moment of birth. Massachusetts even provides that surrogacy agreements can't infringe on the surrogate's authority over her own body, pregnancy and medical decision making. So agreements purporting to waive or limit those rights, like the, the contract that's at issue in the McKenna west case, those would be void as against public policy. that should. That rationale actually makes sense. And Massachusetts got, the. This right. And it's not actually a radical proposition. legislatures have already recognized the inherent danger of saying, you know, yes, it's your body, but you contractually promised someone else control over what happens to it. And what about contractually waiving the right to control over what happens to a child's body? I mean, these are the principles that we need to extend to protection over everybody and every life, including the unborn child. So, the extraordinary proposition here is that contracts, in some surrogacy instances, they're wanting to exercise control over a third party. I mean, a surrogate currently can agree to carry someone else's child, but that doesn't mean that she becomes someone else's property. Well, what about the child? Already the child and the child's body have been commoditized. So why are we having these ethical, considerations only about the woman's body and not about the child's body?
Commercial surrogacy forces the law to answer questions that ordinary commercial contracts were never designed
So the bigger problem, of course, is with commercial surrogacy. And as, Frank Pavone mentioned, in the prior segments that, you know, this whole idea of messing with natural law and the biblical definition of family and when you have, the, the conception of a child is that we have to face these ethical and legal questions. And so this isn't just going to happen. In the instance of McKenna west, surrogacy forces the law to answer questions that ordinary commercial contracts were never designed to answer. We were never, supposed to have the right to contract, extend to the right to contract out one's body, the right to, contract medical control, over a woman's body or over a child's body or to commoditize either a woman or a child. And so we should ask ourselves, you know, what exactly is being purchased, purchased or being lent out? Gestational services, custody, parental rights, a particular outcome, having, you know, a child that's free from a defect, a product. It's kind of liability question. so a healthy child versus a quote unquote defective one. I mean, how vulgar and crass of a conversation. so what happens when the child doesn't conform to the expectation of the contracting parties when you have, you know, an actual product, you know, like a contract law would always call it a widget, you know, like a fictional thing or just a contemplated object that is non living. It's, you know, it's just a physical object like a basket. Right. that when there are defects in production and manufacturing and all of that, well, it's very easy to you just say, all right, well, we'll remanufacture it, we'll contemplate, you know, some of these, other possibilities. But a child is never a defective product or a product at all. Children are not baskets, they're not widgets. Pregnancy is not manufacturing. And this case case exposes what happens when contractual thinking moves into an area involving three humans, human beings, not merely two contracting parties. So the law should have a presumption in favor of life and it must recognize duties toward vulnerable human beings. The biblical worldview has to be imposed upon contract law. These are questions that we're going to have to answer and they're serious ones that serious Christians need to be involved in. As always, you can reach me and my team, [email protected]. Preborn has rescued over 400,000 babies from abortion. And every day their network clinics rescue 200 babies lives. Will you join PreBorn in loving and supporting young moms in crisis? Save a life today. Go to preborn.com afr.
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Biological parents of baby Gabriel suing surrogate mother after she refused abortion
Jenna Ellis: I love talking about the things of God. Because of truth and the biblical worldview, the U.S. constitution obligates our government to preserve and protect the rights that our founders recognize come from God, our creator, not our government. I believe that scripture in the Bible is very clear that God is the one that raised up each of you, and God has allowed us to be brought here to this specific moment in time. This is Jenna Ellis in the morning.
Jenna Ellis: Good morning. It is Friday, August 21st, and we need to talk about the state of, contractual killing in America. Yes, this is actually happening in the context of surrogacy. And, this is something that you would never think would be allowed in any other context. So why should it be allowed in this context? So you've heard of baby Gabriel, from Texas, and, the surrogate mother who refused to abort him after he was diagnosed with a congenital heart defect around 20 weeks. And now the biological parents of baby Gabriel are suing the surrogate mother for more than $100,000 after she refused their demand to kill him through abortion. So the couple, this coming from LifeNews.com, the couple had agreed to pay West $60,000 to carry their child under a contract that include, included an abortion clause allowing them to end Gabriel's life if there were issues with the baby. So now they are asking a judge to award them more than $100,000 in damages from the surrogate mother for breaking the deal, plus unspecified damages for her alleged, quote, malicious, outrageous conduct. Let's welcome in Father Frank Pavone, who is founders of Priests for Life. And this is just so disgusting, first of all, that these types of contracts are, are even allowed to exist and be legally enforceable, potentially in the United States. And the fact that now the birth, or the biological parents are actually seeking to enforce this type of clause because this surrogate mother saved her child's life. I mean, this. This is so unspeakably evil.
Jenna Terplates: People are tampering with how human life should come about
Frank Pavone: Yes, it is, Jenna, and thanks for inviting me to talk about it. You know, what we see here is, is people are playing with fire and getting burned, and the fire they're playing with is tampering with how human life is supposed to come about. So if we take a step back and look at the big picture, moral, philosophical, spiritual things going on here, the problem ultimately is this. God has set up a in which human beings come about. It's through the union in love of two other human beings. And, and, and it's always a gift. You know, it's like, let's say people are going to do it the traditional way, right? Okay, so person A loves person B, man and woman. By the way, no meddling with that either. And they say we want to have a child. You know, so, I mean, they, the woman can track her, you know, fertile days in the cycle, etc. But even so, no matter what they do, it's always a maybe, right? I mean, it's like, okay, we're going to come together in a loving union at a fertile time of the month. Maybe God will grant us the gift of a child. And that's why God set it up that way. The child is a gift and the child is a person. Now, if the child is a person, that means the child is not an object to be put together in a scientific laboratory or in a petri dish. Moreover, the mother is the mother of that person. And what we're seeing here is contracts that are trying to split motherhood. You take care of the bio, I'll pay you to take care of the biological part of this. You carry the child, and then I'll be the parent later. Oh, it's my child. Why? Well, because I want a child and, you know, I could contribute the genetic material or maybe even somebody else can, you know, and we're tampering, we're playing around with, with the origins of human life. And we expect it to work. It's a Tower of Babel. It's not going to work. And what we see now is the confusion of the languages. God came down and confused the language. We hit a brick wall here. We're in a moral quandary. We're in a dilemma. Nobody, no amount now of suing or countersuing, no number of judges or courts are going to be able to fix this. The feathers are out of the pillow. This is a mess. And it's going to continue to be a mess if we think we have a better idea for how human life should come about than God does.
Jenna Ellis: So, well said. I could not have put that more perfectly and it is so true that the nature of conceiving children should never be subject to a contract that reduces it to commodification and to production and to, these types of moral and ethical questions surrounding abortion. And it's going to be very interesting to see, and I'm grateful that at least this is being disputed in the state of Texas, that hopefully will view this, more morally and ethically than, perhaps a blue state judge would. but what's also fascinating to me here, two things. First, that, as I mentioned off the top, that, in any other situation, if you have a contract that includes a termination of life clause or basically contract for killing, those are unconscionable and are never legally enforceable. So hopefully that will be one of the defenses raised here. And that somehow, you know, society thinks, or there's at least a segment of society that thinks that under the, the context of an unborn child, that somehow that's different. Right? And it's not. And the law should follow that. But second, that if this were the biological mother carrying the child and chose to have an abortion, the. The law in a lot of states right now would not see that as a contractual sort of killing, but as a fundamental right of a parent. And this is where the law around abortion absolutely needs to catch up with reality, that if we are so offended, as we should be, that there is a contract that literally contemplates murder in the event, a discoverable defect of the child that allows them to then be killed at the whim of the parent, well, that's happening without it being spelled out in black and white all over the country, and we need to make that illegal.
Frank Pavone: You know what, Jenna? two things. First of all, yes, the blind spot here, it's discrimination against the unborn. If contracts cannot be legally binding when they involve the agreement to kill a human being, well, then why are they okay, in the case of abortion, Terrible discrimination against the unborn, the most unjust form of discrimination. That's the problem that has to be fixed.
In various states now we have constitutional amendments allowing total freedom regarding reproductive decisions
But, you know, there's another interesting dilemma that comes up, and as you were just talking, I thought about this. In various states now we have these constitutional amendments allowing, a total freedom regarding reproductive decisions. That, of course, includes abortion. Some of these amendments are explicit about it, including abortion. Others, it's implicit. There, are more on the ballot this November in, Virginia, Idaho and Nevada, and in about 10 states they've passed. Okay. Now, some of them are very explicit and Again, they're all implicit that any decision regarding reproductive, your reproductive life includes a decision, includes the right, quote, unquote, not only to terminate your pregnancy, but to continue it. To continue it, the sovereign right of that mother carrying the baby. So how does that, conflict with this? Isn't this interesting? What if this mother is in a state that has that constitutional amendment, pro abortion constitutional amendment, but the right to make reproductive decisions includes not just the right to end the pregnancy, but the right to continue it. So she asserts her constitutional right in a state, I have a right to continue my pregnancy. See, many people are looking at this as well. She went to Texas and Texas says the unborn or protected abortion is banned. All right, that's one way to look at it. But what if it's in a pro abortion state where the right to continue one's pregnancy is now in the state constitution? How would that deal with now a contract that says, well, you know, under certain circumstances you have to abort that baby.
Jenna Ellis: And yeah, and this is where the natural conflict of the, of these ideas will compete. And you end with a clash of, the ideology. When the, the ideology of abortion runs up against reality. Because if there are parental rights, that are fundamental and constitutionally protected, on the state level as well, then what happens when the birth mother, wants to go against the wishes of the biological parents? And this is exactly, by the way, why McKenna, West, who is the birth, this instance for baby Gabriel, went to Texas from Alaska, because Texas is a state where the law recognizes the woman who gives birth as the mother. And so even though right now in this, situation, unfortunately, ah, custody has gone to the biological parents who are the ones who literally contracted and demanded to kill the child. So that's completely outrageous and illogical, to put a child back in the hands of two people who wanted him killed. But, that's an interesting question to raise. At what point if you are a surrogate woman and you are renting out your womb, then at what point does the law recognize that you are actually a birth mother? And this is why tampering with the natural law and the natural process of procreation and childbirth becomes so ethically untenable because you get into these questions that naturally you never would under God's design.
Frank Pavone: Well, you know, and M. Jenna, the other side of the coin is very interesting too. What if all the parties involved are in one of these states that has one of these constitutional amendments for unfettered abortion? And so the surrogate mother is carrying the baby. But then she, for whatever reason said she decides she wants to abort the baby. Now I'm saying now this might seem like a slam dunk. It's like, well, wait a minute, she just signed a contract to bring the baby to birth, yet she did, but in a state that gives her a explicit constitutional right to have an abortion. And remember, the wording of these amendments says without any delay, hindrance, obstacle whatsoever from any source.
Jenna Ellis: Which might include a contract.
Frank Pavone: What controls, doesn't the constitution control in that case? So if the contract was made in that state, isn't all contractual law subject to the state constitution? So I mean, these are important, these are interesting legal questions. Like you say we're running and it goes back to my original point. We get ourselves in ethically unresolvable, quandaries when we start messing around, with God's plan. And then of course there's another dimension too. What if, she went ahead and had the abortion? Okay, are these, are these. So the birth mother has an abortion. Are the original parents or the adoptive parents are now responsible for any of the negative, physical, psychological, emotional after effects of abortion which only that birth mother is going to bear? Well, of course I shouldn't say only because if they said to her abort the child, they're going to have lifelong grief as well. But I mean, you, as you know, we deal with this every day, right? I oversee the largest ministry in the world for healing after abortion. We also have the Silent no More campaign where people speak out about the grief and devastation and the physical and emotional harm. And for some of these harms, you know, they, they have, you know, lifelong infertility, for example, could be one of the after effects of abortion, perforated uterus. It could be any number of things. Who's responsible? Can she then go back to the parents that made the contract with her and say, hey, wait a minute now I'm suffering all these effects. You're going to help me pay for my medical bills? You know, can I countersue you. These are all big questions.
Jenna Ellis: Yeah, yeah, they are. And it just, it is so wrong that we are even having to contemplate, and legally adjudicate these types of questions that again would never arise in the context of the biblical family. And when you have a father and a mother, in the context of marriage, if something goes wrong in their pregnancy, obviously not including the choice of abortion, which is wrong, but isn't, isn't ever, you know, medically necessary. that you know, you have, if you have a miscarriage, if you have medical complications, the biblical family has the way to deal with that, which is that you say together you love each other in sickness and in health and for better or for worse, and you go through this together instead of having to determine whether the Constitution or the contract is, superior and more legally enforceable in dealing, you know, with all of these other issues that are so tremendously heartbreaking just because we have strayed so far from God's design of the family. And, and, you know, I really applaud, McKenna west for refusing the request to abort and for giving baby Gabriel, Gabriel the chance at life. And I hope that Texas will set a very good precedent to say that this type of clause is unenforceable because it's unconscionable. That's what the law needs to start reflecting and saying. You can't just contract away your, the, the ability, the right that the child has to life. And perhaps that type of legal precedent will end up having an effect on some of these, just outrageous abortion laws that should protect the life of the child. But we've got to take a break here. I'm going to, keep Father Frank Pavone on for the next segment. We will be right back with more here on Jenna Ellis in the Morning.
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Jenna Ellis: Welcome back. I'm here still with my special guest, this morning, Father Frank Pavone. And we're talking about the ethical questions when we start meddling with, ah, the beginning stages of life, ah, human life, which as we know every human being is made in the image of God and has inherent dignity, worth and a right to life from the moment of conception all the way until natural death, regardless of contracts to the contrary or whether surrogacy is involved or all of these other ways that we try to meddle or with God's design. And the same can be said, Frank Pavone with some of these contemplations and ethical questions on the end of life. so I had a, an opportunity to have a, you know, really fascinating conversation, with a Neighbor of mine. And you know, we were just at the dog park and talking about the horrific nature of testing on, on animals and the the beagles who have all been saved, and rescued, you know, from these horrendous practices. And her comment, and she had previously told me that she's a Christian, and her comment, you know, was we should never do anything like this on living creatures. It's terrible. And I said yeah, and I can't believe that, you know, recently the Massachusetts governor is now, you know, allowing abortion until the moment of birth. And her immediate response was, well that's different, right? And actually advocated for abortion under this assertion initially that she can't impose her medical judgment. And you know, well, what about the life of the mother? And you know, and I gave her of course all of the responses and the statistics of, you know, how the vast majority of abortions in America are by choice for perfectly healthy children, you know. And and so we got to the point though in the conversation where, you know, and she's throwing out all of the talking points and the regular objections and this is somebody who's supposedly a Christian, which is a whole other problem with the conversation. But she then at one point said, well, you know, this is the problem with the pro life whole movement is that you all, and of course this is such a generalization. You all only care about the unborn. You don't care about what happens to human beings, you know, after they're born. I mean, look at how much money is being taken away from school children for their school supplies. And I said, okay, wait a minute, you are equating children not having access to crayons with the legal ability to kill a child until the moment of birth. I mean, where's your compassion for the five month old, you know, or the five week old, in the womb, the same way that you do have the five year old, you know, school child. Of course she didn't have a response to that, but her whole overarching premise was that somehow, you know, the pro life movement doesn't care.
The founders explicitly rejected the notion that human rights are unalienable
And so I want to talk about that and how, you know, this whole idea of being able to contract away the rights of a third party, or even your own right to life is something that the founders expressly and explicitly rejected when they said, and they recognized that it's not their declaration, it's a recognition of God's declaration that our rights, including the right to life, is unalienable. It can't be, removed from us, bought, sold, purchased, contracted away. And that includes things like physician assisted suicide, completed life bills, and we have to have that same, consistency throughout the span of protections and being pro life, across the entire spectrum of human life.
Frank Pavone: Yes, that's so right. You know, first of all, in regard to the accusation, we only care. We don't care about the babies after they're born. I'm sure there's some firefighters, in our audience, okay? And we applaud the firefighters. God bless you, men and women. What a. What a, what a. It's a vocation. do we ever hear people say to firefighters, hey, you guys go in? Yeah. You know, you go in and you. You fight the fire and you carry people out of burning buildings, but you don't care about those people after the fire. Do we ever hear. Do we ever hear people say that, you know, or even, like, you know, I had heart surgery a few years ago? Right. do we ever say to the surgeon, you don't care about the people after the. After the surgery, you saved their life, but, you know, that mean then you saved their life in a fire and a surgery or whatever, you saved their life. So now do you have to. Does that mean you have to follow them throughout the rest of their life and take care of all their other needs, too? I mean, it's a ridiculous way of looking at things. And, you know, first of all, it's obvious, contrary to fact, you know, we do care. We don't say to Alcoholics Anonymous, you don't care about people who aren't alcoholics, et cetera, et cetera, et cetera. It's just a gratuitous, judgment on people, which the Lord says we shouldn't be doing anyway. but yes, the whole idea of a contract being able to alienate the right to life goes against, like you just said, what the word unalienable means. I like to describe it to people this way. Can you take any action or can anyone else take any action to make you not human? And it's like, I could fantasize about it, you know, like people do when they think they're, you know, I identify as a cat, you know, all this other nonsense. But can anyone actually do something or can you actually do something to make yourself not human? The answer is obviously no. Now, that's how we have to look at human rights. Because the reason human rights are human, what it means is that they are as attached to you as your humanity itself. Just like nobody can change you into A different species. Nobody can say, you don't have your human rights. And those rights, of course, begin with life, both by logic and by the explicit Declaration of Independence. So that's how we have to understand human rights. And our founders understood this. It's a philosophical, moral point, but it's at the core of everything else. Because if in fact our humanity, human rights, are alienable, if they can be removed from us by someone else, and it might be an individual or some kind of power like a court or a king, or if we can throw them away ourselves, then a big question opens up, Everything becomes negotiable. And then how does that negotiation occur? And how are the weak then protected from the strong? That becomes the big question. And this is why I always say, in the context of the pro life work that I do, that unless the unborn are protected because they are, by the way, the only group of people here in America that are, you know, the only group of undeniably human beings that we are saying do not have the right to life unless they're protected, then all of us are in danger. We can't pretend to be holding on to the inalienable right to life ourselves if somebody else is being deprived of it at any stage of life. it's the principle which if you break it at any point, it is broken at all the points simultaneously.
Jenna Ellis: Absolutely. And this is where, you know, if you start saying, well, some humans, ah, based on their age, then you can start saying, well, based on their nationality, like Jews and the Holocaust, or their skin color like slaves, or you know, their their gender, like, you know, the the commodification of women, you know, all of these different various ways we try to categorize, humans into worthy and unworthy. If we do that at any. For any reason, at any stage of life or any specific category or of, and try to distinguish human beings as some more human than others, then we ultimately get to the abridgement of the right to life, at which we should never ever get to for any reason whatsoever. A human being is a human being, regardless of any other m. Intrinsic characteristic or distinguishing factor throughout their lifetime. you know, like we. The. The completed life bills are just so ethically horrendous to suggest that somehow value to society, which is completely subjective, should have any weight or bearing on a person's right to life, or even the right to, Because they. They don't even have the right to take their own life. I mean, the right to life is so sacred that we as a society recognize that we cannot even abridge our own right. in that instance, I mean, there are a lot of other rights that we have, that, you know, like, like our property rights. Well, we can sell those, we can, alienate those from us. But the fundamental right to life, we can't even alienate from ourselves because we are living and human. And those are two factors that don't change until God himself says that, you know, that your, your days are. Numbers are numbered and I hold your life in my hands. And this is why it is so sacred and so fundamental. But also, Father Frank, why so many of the anti life crowds want to either, at all stages of life, they attack one of those two prongs. Either the humanity of the individual. They want to say, you know, call a baby a fetus because somehow that dehumanizes them. Right. And they want to deny the humanity or they want to deny life.
Jenna Bennett: Christians need to be involved in policy making and lawmaking
Like a lot of these, issues that are coming up with organ donors, or with you know, brain death or with physician assisted suicide or some of those things. They want to deny, the life. And both of those prongs are attacked during the pro abortion arguments and the anti life, anti human arguments. But we see one of those two prongs is always attacked when the, the left or the the anti life, anti human advocate are advocating for some sort of legislation or law that would foreclose human life.
Frank Pavone: Yeah. And you know, a whole host of other problems arise when we say that we can choose death. You know, looking at it as you brought up at questions, of physician assisted suicide, euthanasia, etc. you know, when people start talking about the right to die, you know what I say, Jenna? And it the right to die, worry you won't miss out on it as soon as you declare a right. You know, people want to line up and make sure they're not going to miss out. We do not have a claim on death. Death has a claim on us. So we can't kill people, but there comes a time when, you know, we die or the body starts breaking down or we get some disease, et cetera. So then the question becomes, well, we know we can't take a life deliberately, we know we can't take our own life deliberately, but then how much do we need to do to preserve our life? And that's where there can be legitimate limits. You know, I mean, there's no, there is such a thing as a worthless treatment. You know, you Ask, And nobody knows what medical conditions we're going to face someday. But when you're in the situation, obviously you can have the medical evaluation. You know, is there a treatment that can provide you some benefit? But there may be, all kinds of treatments that won't. So there is such a thing as a worthless treatment. You could say no to it, but there's no such thing as a worthless life. And that's a distinction that needs to be made. We don't have to use every and any conceivable treatment, machine intervention, surgery or what to continue our lives. But neither can we directly take the life. And where that boundary is, is I think the most important, prudent, practical advice people need to keep in mind is that you can't make that decision until you're in the situation and you know, the m. Medical, the medical, condition. And if you're unable to speak for yourself at that moment, that's why it's wise to appoint somebody in advance who understands your moral convictions and will be able to speak for you and accurately represent what you really want.
Jenna Ellis: Yeah. And this is where again, you know, some of these contracts, like the power of attorney over, you know, medical decision making and some of these other things, ah, pose really serious ethical questions. And this is why Christians always need to be involved in policy making and in lawmaking. because if we turn over any of this just to the secular humanists, or those who say, well, you know, the right of contract, that's all that matters. and all that the state should be able to do is arbitrate those contracts. Well, what happens in the instance of someone like M. McKenna west, who is subject currently, until hopefully the state says no, it's unconscionable, it's legally, unenforceable, you subject to a condition of a contract that is absolutely unethical and morally evil. I mean these are things that we have to be consistently engaged in, as Christians, because it's not as simple as saying, well I'm for pro life because I care about babies. Great, so happy about that. But it extends further into all kinds of different ethical situations and arguments that we really need to be aware of. And we really need to encourage our legislators and also our judges, to ensure that they're looking at this biblically and accurately. And so, how.
Father Frank Pavone: We are more of a patchwork on abortion issues
Last question for you. I'm Father Frank Pavone and I so always appreciate your time on these important topics. where would you rate Our current, on the state level, overall, on some of these things, at least in terms of being able to push for legislation that accurately reflects these unalienable rights.
Frank Pavone: Oh, very mixed picture. We are really more of a patchwork on this than ever before, you know, when it comes to taking the lives of the unborn. We had a really big problem when Roe v. Wade came down. but then we fixed that. Took five decades, but we fixed it. And now what that has led to, of course, is a patchwork where there's a good aspect to that, because now people are, in fact, able, with their elected representatives, to protect these babies. But it's a patchwork, and I would say more of a patchwork than ever before. The same thing is true, you know, in regard to the other end of life when it comes to euthanasia, assisted suicide, and actions that would end a life at its later stages. we almost had a Roe v. Wade of that assisted suicide, euthanasia back in 1997. it was not as well known a case. Certain states were starting to legalize this. But in 97, the court faced the question of, you know, are we going to declare it to be a constitutional right, you know, to end your life? And they said no. Now, what has happened since then in the last 30 years is that again, we have a patchwork of different states, some states going way, way in the wrong direction, and other states, being more protective. So America right now, is a very much of a checkerboard when it comes to these matters. We do need to get to the point where we recognize the federal government does have a role. there is something here rooted in the Declaration and in the Constitution. But I think we get to that federal, policy by working in the states and getting more consensus among the states. Obviously, one little thing that people may also want to keep in mind, be aware of the distinction between a living will and a will to live. living wills can be dangerous. They often try to put, predict the future. They might put you in a legal quandary of, you know, not being able to get the care that you need for yourself or a loved one. Be very careful with those documents. But there is a document called a Will to Live at our website, Priests for life. There's priestsforlife.org willtolive and people will see there's documents that have been prepared for each state according to that state's laws. Good thing to follow up on from this discussion. And secondly, you know, I was very involved. As you know, we don't have time to go into it now with the Cheri Schiavo case back in 2005, I was, one of the few people who could go into her room. I was an advisor to the family and an advocate for her life. and one of the key things that resulted from that was, you know, we have to pay more attention to how food and water are being categorized in state law. And I would push for change here where we do not categorize feeding a person or giving them, hydration. Don't categorize that as medical treatment, because a person can refuse medical treatment, but you're not allowed morally to starve yourself to death or to dehydrate yourself to death. And that's what happened to Terri. It wasn't a disease. It was a direct starvation and dehydration. So let's not categorize food and water. When I come, come back from lunch today, I'm not going to say, hey, I just came back from my latest medical treatment. You know, it's not a medical treatment. It's basic care, like breathing oxygen, you know. So, Jenna, so many important things to say, but America is at a patchwork point now. That's why our elections are always so important, and that's why programs like this are always so important as well. Thanks for addressing these issues.
Jenna Ellis: Thank you so much. And we've got to take a break here, but so well said. And we've got got to continue at every stage and policy and state pushing for pro life because this matters, to every human being who's made in the image of God, inherent dignity, worth, and the right to life. Human life absolutely matters. We'll be right back. We're living in a defining moment in history. Today, a woman facing an unexpected pregnancy can order the abortion pill online, often before anyone has had the chance to tell her she is loved, that she's not alone, or that there is hope. That's why you are needed right now. You were made for this moment. At PreBorn Network clinics, mothers are welcomed with compassion, practical support, and a free ultrasound. And when she sees her baby and hears that tiny heartbeat for the very first time, fear often gives way to hope. In fact, more than 80% of abortion vulnerable women choose life after seeing their baby on an ultrasound sound at a PreBorn Network clinic. That one moment can save a baby's life and open a mother's heart to the hope of Jesus Christ. This is our moment to stand. For those who cannot speak for themselves, just $28 provides one life saving ultrasound. $140 helps rescue five babies. Please don't wait. Dial pound 250 and say the keyword baby. That's pound 250 baby. Or give [email protected] afr that's preborn.com afr Together we can save lives one heartbeat at a time.
Jenna Ellis: You cannot contract away a human life under contract law
Welcome back to Jenna Ellis in the Morning on American Family Radio.
Jenna Ellis: Welcome back. And I want to talk a little more deeply about this point about contract law and the fact that you cannot contract away a, a human life. And so America believes strongly in the freedom of contract and the free alien ability of property. But freedom of contract has never meant that every promise you put on paper can become legally enforceable through the court system. So for example, as we've talked about, you can't hire someone to commit a crime and then allege a breach of contract if they don't follow through with it and expect a court to enforce that. You can't contract around certain fundamental public policies. And the government should certainly never use the power of a court to punish a woman because she refused to abort a child. I mean, this is just wild that we are even in the moment, in the state of Texas of contemplating this, and we're still talking about the McKenna west case, who entered a gestational or surrogacy arrangement, with two biological parents of the child. And approximately 20 weeks the baby was diagnosed with, a congenital heart defect. And so the dispute arose when the intended parents, sought to enforce termination of the pregnancy and killing the child. And west, the birth mother ultimately refused. So baby Gabriel was born on August 12, and we are grateful to the Lord for that. And has undergone the first of multiple anticipated heart surgeries. The state of Texas is protecting, his right to life saving surgery. And so now though, the intended parents are seeking more than $100,000 in damages based on alleged breach of the surrogacy agreement that she refused, to abide by this abortion provision. And so the central question for us is how can a court use contract law to impose monetary or other liability on a woman because she refused to end a human life? And my argument of course, is that it shouldn't. And contract law already has limits. And so this is where I'm going to kind of put on the lawyer hat and start with the basic proposition that freedom of contract is not absolute. And so, the restatement of contracts are basically what contract law started out as common law. And then of course we needed a restatement of the law and that's where we get this term, the restatement of Contracts. but it's a provision, within contract law that recognizes that a contractual term can be enforceable when the interest is enforcing. it is, consistent with public policy. And so a contractual term can be unenforceable when the interest in enforcing it is outweighed by public policy and, the principles that undergird civil society. So courts consider, among other things, the strength of public policy and the seriousness of the conduct implicated by the agreement. And so this is not some new pro life invention. This isn't, completely novel territory. It's a basic feature of American contract law law of unconscionability and unenforceable, provisions. So the murder for hire analogy is, is fairly on point and pretty forceful. Because imagine for example, that, that you sign a contract saying that you're going to pay $100,000 to kill a third party. The assassin that you hire takes the money, but ends up, reneging, saying, you know, I'm getting cold feet, I don't want to do that, that. Can you actually sue him in a court of law? Well, of course not. You don't get to walk into court and say, your honor, we had an offer, acceptance, consideration. We had all the elements, legal elements of a contract. And consideration under contract law, by the way, is, is a valuable exchange. So something for something is a contract. Right? so saying, you know, this person promised, to kill this third party. I promised to pay him and he breached. The problem isn't whether we formed a contract or an agreement. The problem is the object that we are asking the court to enforce. The courts are not going to enforce bargains whose performance violates criminal law or sufficiently strong public policy. And so this is where public policy must extend to cover unborn children. The Supreme Court itself has quoted, the long standing principle that when an agreement grows directly out of an illegal or immoral act, courts will not lend their assistance to its enforcement. And in fact, the people who are part of that, overall conduct can be, can be charged at times depending on the, on the conduct with criminal conspiracy. Right? So this doesn't mean that, oh, hey, we had a contract, everybody was on board. So you can't criminally punish us for the object of what we were actually carrying out. So, murder for hire, for example, doesn't become lawful just because everybody understood the terms. The provision was negotiated, lawyers drafted it, money or other valuable consideration changed hands, or someone, just later changed their mind. Consent cannot transform an unlawful purpose into an enforceable contractual obligation, especially when that unlawful conduct is immoral. So here's where this issue becomes, really necessary to consider when it relates to surrogacy. So the other side, of course, anyone listening to this, who's, who's, pro abortion, pro baby killing, will immediately say, well, abortion isn't legally murder. And as a description of current criminal law in jurisdictions where abortion is still lawful, sure, that, that's, that's an important distinction, but it still is absolutely immoral. And this is the reason that abortion should be criminalized in every jurisdiction. So we don't reach the question, the legal question of whether basically murder for hire contracts in the context of an abortion clause in a surrogacy agreement can be legally enforceable. So this is where the principle comes into play that contract rights stop where sufficiently strong law and public policy begin. So if the government cannot specifically force a woman to undergo an abortion, which obviously it can't, it should be, then, we should consider the question, should it be allowed to accomplish effectively the same coercion indirectly by threatening enormous financial liability for a woman who refused one? That's the key. This isn't the government merely allowing private parties to disagree. This lawsuit is asking the judiciary, the state, to enforce the bargain or the negotiated terms. A damages judgment would mean that you had. The birth mother would have the legal right to refuse abortion. But in any other context, but because she exercised that right when a contract expressly said that she couldn't, the government would order her to pay an exorbitant amount of money, or any amount of money at all, any sort of liability that is attached to that refusal. And this raises profound questions about bodily autonomy, public policy, and the state's interest in human life. And I would ask the pro abortionist, I thought you came about the woman, her bodily integrity, and you know, what pregnancy, does, does to him. What about. What about what abortion does to a woman? And it's important to note as well that we actually do have some states that recognize this principle. And it's a really strong point because we don't have to argue entirely from theory or, borrowing this principle to then cover, the idea of a surrogacy. Contrary Virginia law, for example, expressly provides that any contract provision requiring or prohibiting an abortion or selective reduction is against the public policy of the commonwealth and is void and unenforceable. This is really remarkably direct. And even Massachusetts, remember this state that just recently, passed legislation that now allows for abortion until the moment of birth. Massachusetts even provides that surrogacy agreements can't infringe on the surrogate's authority over her own body, pregnancy and medical decision making. So agreements purporting to waive or limit those rights, like the, the contract that's at issue in the McKenna west case, those would be void as against public policy. that should. That rationale actually makes sense. And Massachusetts got, the. This right. And it's not actually a radical proposition. legislatures have already recognized the inherent danger of saying, you know, yes, it's your body, but you contractually promised someone else control over what happens to it. And what about contractually waiving the right to control over what happens to a child's body? I mean, these are the principles that we need to extend to protection over everybody and every life, including the unborn child. So, the extraordinary proposition here is that contracts, in some surrogacy instances, they're wanting to exercise control over a third party. I mean, a surrogate currently can agree to carry someone else's child, but that doesn't mean that she becomes someone else's property. Well, what about the child? Already the child and the child's body have been commoditized. So why are we having these ethical, considerations only about the woman's body and not about the child's body?
Commercial surrogacy forces the law to answer questions that ordinary commercial contracts were never designed
So the bigger problem, of course, is with commercial surrogacy. And as, Frank Pavone mentioned, in the prior segments that, you know, this whole idea of messing with natural law and the biblical definition of family and when you have, the, the conception of a child is that we have to face these ethical and legal questions. And so this isn't just going to happen. In the instance of McKenna west, surrogacy forces the law to answer questions that ordinary commercial contracts were never designed to answer. We were never, supposed to have the right to contract, extend to the right to contract out one's body, the right to, contract medical control, over a woman's body or over a child's body or to commoditize either a woman or a child. And so we should ask ourselves, you know, what exactly is being purchased, purchased or being lent out? Gestational services, custody, parental rights, a particular outcome, having, you know, a child that's free from a defect, a product. It's kind of liability question. so a healthy child versus a quote unquote defective one. I mean, how vulgar and crass of a conversation. so what happens when the child doesn't conform to the expectation of the contracting parties when you have, you know, an actual product, you know, like a contract law would always call it a widget, you know, like a fictional thing or just a contemplated object that is non living. It's, you know, it's just a physical object like a basket. Right. that when there are defects in production and manufacturing and all of that, well, it's very easy to you just say, all right, well, we'll remanufacture it, we'll contemplate, you know, some of these, other possibilities. But a child is never a defective product or a product at all. Children are not baskets, they're not widgets. Pregnancy is not manufacturing. And this case case exposes what happens when contractual thinking moves into an area involving three humans, human beings, not merely two contracting parties. So the law should have a presumption in favor of life and it must recognize duties toward vulnerable human beings. The biblical worldview has to be imposed upon contract law. These are questions that we're going to have to answer and they're serious ones that serious Christians need to be involved in. As always, you can reach me and my team, [email protected]. Preborn has rescued over 400,000 babies from abortion. And every day their network clinics rescue 200 babies lives. Will you join PreBorn in loving and supporting young moms in crisis? Save a life today. Go to preborn.com afr.
Jenna Ellis engages in a crucial discussion on the ethical implications of surrogacy and the alarming reality of contractual agreements that include abortion clauses. Joined by Father Frank Pavone, they delve into the moral quandaries presented by the case of Baby Gabriel, a child whose surrogate mother refused to abort despite a congenital heart defect diagnosis. Together, they explore the intersection of law, morality, and the sanctity of life, emphasizing the need for a legal framework that respects the rights of the unborn
(00:00) Preborn needs your help to provide ultrasounds for pregnant women
(00:32) Biological parents of baby Gabriel suing surrogate mother after she refused abortion
(02:59) Jenna Terplates: People are tampering with how human life should come about
(08:06) In various states now we have constitutional amendments allowing total freedom regarding the productive decisions
(16:04) Without people like you, this podcast would not exist
(19:25) The founders explicitly rejected the notion that human rights are unalienable
(26:34) Jenna Bennett: Christians need to be involved in policy making and lawmaking
(30:56) Father Frank Pavone: We are more of a patchwork on abortion issues
(36:41) Jenna Ellis: You cannot contract away a human life under contract law
(47:18) Commercial surrogacy forces the law to answer questions that ordinary commercial contracts were never designed
Jenna Ellis engages in a crucial discussion on the ethical implications of surrogacy and the alarming reality of contractual agreements that include abortion clauses. Joined by Father Frank Pavone, they delve into the moral quandaries presented by the case of Baby Gabriel, a child whose surrogate mother refused to abort despite a congenital heart defect diagnosis. Together, they explore the intersection of law, morality, and the sanctity of life, emphasizing the need for a legal framework that respects the rights of the unborn
(00:00) Preborn needs your help to provide ultrasounds for pregnant women
(00:32) Biological parents of baby Gabriel suing surrogate mother after she refused abortion
(02:59) Jenna Terplates: People are tampering with how human life should come about
(08:06) In various states now we have constitutional amendments allowing total freedom regarding the productive decisions
(16:04) Without people like you, this podcast would not exist
(19:25) The founders explicitly rejected the notion that human rights are unalienable
(26:34) Jenna Bennett: Christians need to be involved in policy making and lawmaking
(30:56) Father Frank Pavone: We are more of a patchwork on abortion issues
(36:41) Jenna Ellis: You cannot contract away a human life under contract law
(47:18) Commercial surrogacy forces the law to answer questions that ordinary commercial contracts were never designed
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