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'The Good Wife': Good Law? - Season 5, Episode 3

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By Aditi Mukherji, JD on October 14, 2013 1:10 PM

This week, "The Good Wife" took a break from its attenuated NSA plotline to tackle a deeply emotional and controversial issue -- that of surrogacy and abortion. Add some nasty internal firm politics to the mix and voila, you've got 45 minutes of legal-tainment brimming with drama.

Here's a breakdown of the third episode from the new season, "A Precious Commodity":

Episode Recap (Spoiler Alert!):

Two surrogate parents opt to terminate their fetus when they learn it would have severe birth defects and only a 15 percent chance of survival. When the surrogate refuses to have an abortion, they sue the surrogate for breach of contract. However, the whole legal hoopla is ultimately rendered moot when it's discovered the pregnancy is too far along to be terminated.

The Good Wife: Good Law?

Season 5, Episode 3
"A Precious Commodity"

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Legal Roots:

Surrogacy is always a hot-button issue, and surrogacy agreements raise a slew of legal questions. Clashes between gestational surrogates and biological parents regarding abortion happen frequently. This episode's plotline perfectly mirrored one gestational surrogate's refusal to abort a fetus with birth defects. What makes these cases particularly challenging are their legal, moral, monetary, and philosophical parameters.

The plotline didn't explore potential child custody issues presented by surrogacy, but it did raise nuggets of legal issues related to parental rights, coercion, and privacy rights. The overarching question: Is your body your own when you've contracted it out?

Legal Fiction:

In many cases, the remedy for a surrogacy agreement breach is money damages rather than specific performance -- which is far less dramatic than forcing someone to do something like terminate a pregnancy.

Legal Fact:

The episode correctly highlights the fact that surrogacy contracts aren't always enforceable.

To their legal detriment, the couple had included a "pregnancy termination" clause in the surrogacy agreement if the baby were to have "severe fetal abnormalities." But alas, the individualized right to abortion fleshed out by Justice Sandra Day O'Connor in Planned Parenthood v. Casey focuses on the physicality of pregnancy. It's the burden of pregnancy and not the burden of parenthood that lies at the heart of the abortion right (or here, the surrogate's right). The abortion right can't be waived or transferred by commercial agreement.

Just like how it played out in the episode, intended parents often don't have a negotiated right to avoid procreation once the embryo attaches to the surrogate's uterus.

Legal Babble:

Under contract law, specific performance requires a party to perform the exact terms of a contract. It's used for unique contracts where no other remedy (i.e., money) will remedy the injured party.

The Verdict:

This was a topical but fair summary of the plethora of legal issues that surrogacy agreements face all over the globe. Surrogacy issues are deeply emotional, controversial, and -- making it particularly ripe for a primetime legal drama -- legally grey.

What did you think of this week's episode of "The Good Wife"? Is the show guilty of making any legal mistakes? Check back here for more legal recaps of "The Good Wife," and send us a tweet at @FindLawConsumer with the hashtag #TheGoodWife.

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