This post is about YOU, the Surrogate. It is not about my opinion on what the Supreme Court did, or didn’t do, with its recent decision in Dobbs v. Jackson Women’s Health Organization. Whichever side of the political spectrum, or abortion issue, you are on, will likely determine how you feel about the ruling. I respect that each of you, as individuals, have your own views and feelings on the matter; women are not a monolithic group. I am not here to pile on to the handwringing over what this will mean for our industry or how it might discourage Intended Parents from pursuing surrogacy. Virtue-signaling at this stage about a decision we have known was coming since February seems unhelpful at best. There is plenty of that out there. I will note that the vast majority of the posts/blogs/discussions about the impact of overturning Roe on surrogacy seem to focus on how it will affect Intended Parents. Well, what about the Surrogates? My concern, and my only concern, is what does this ruling mean for YOU and what are the implications of the ruling on YOUR surrogacy contract.
In this blog we will look solely at instances where the Intended Parents are desiring to terminate the pregnancy. In the next post, we will switch gears and evaluate considerations and concerns if the Surrogate is the one needing to terminate the pregnancy to safeguard her health and well-being. Now that we know where we are going, let’s dive right in.
Federalism: The Land of the Red, White, and Blue
In very basic terms, the death of Roe v. Wade restored the ability to regulate, restrict, outlaw, or expand access to abortions to the states. Abortion is now added to the list of very significant issues that are regulated at the state level. We live in the land of the red, white, and blue. In Red States (conservative leaning), new laws or regulations are being passed that limit or restrict access to abortions and the time-period in which one can get an abortion (many are keeping the old standard of viability just for consistency). In White States (what I call purity states), laws banning abortions completely (or only allowing them to protect the life of the mother) are making elective abortions virtually unavailable. And in Blue States (progressive/liberal leaning), laws are being passed and amendments to state constitutions implemented that expand a woman’s access to abortion and extend the time-period in which they can get one. In actuality, this Federalism at its best/worst, depending on your views of abortion.
The rules and laws governing all these state level changes are currently in flux as trigger laws run into state court temporary injunctions. This map from Politico does a pretty good job of summarizing the current state of abortion laws across the states (please note that they don’t use my Red/White/Blue color-coding scheme, but it is still pretty useful). It will take some time for everything to settle out before we reach an equilibrium where the status of abortion access in each state is fully understood such that we can plan accordingly.
Your Surrogacy Contract Provisions on Abortion: Intended Parents’ Choosing to Abort
Going back about two years, most surrogacy contracts would require a Gestational Surrogate to undergo an abortion in her home state as long as there was a medical justification for the Intended Parents to request one. The state the Surrogate lived in would determine if there were any timing restrictions on when the procedure could be done subject to any termination deadline she specially requested. Absent a specific gestational limit for abortion, this generally meant that the Intended Parents had up until the point of viability (a moving target) to decide if they felt the pregnancy’s development warranted them requesting their Gestational Carrier to terminate the pregnancy. Excluding a handful of states with statutory language seeming to allow Surrogates the autonomy to decide the abortion issue, if the Intended Parents asked their surrogate to abort, it would not really be a request, it would be a contractual requirement. If the Surrogate refused to terminate when asked, then there would be huge financial ramifications for breaking her contract promise.
Over the past two years and with the passing of early abortion restrictions in states like Texas, Mississippi, and Idaho, surrogacy contracts across the industry have started to include travel provisions. These were added to facilitate the ability for Intended Parents to require their surrogates to terminate the pregnancy in a nearby state that didn’t have any onerous limitations. The Intended Parents would be obligated to pay for any of the logistical costs associated with their Surrogate traveling to a nearby state to terminate if needed. The contract would normally say that the state where the procedure takes place will govern any timing restrictions based on that state’s laws. However, this still usually meant that the viability cut-offs for termination would likely govern as most states followed that standard during the Roe era. This seemed reasonable enough.
In today’s post-Roe era, these travel provisions carry a completely new meaning for the Gestational Surrogate. With many Blue States expanding access to abortions as well as extending the timing for when they can be obtained, the arbitrary restraint of viability is out the window. Some states like Oregon, Colorado, and New Jersey have boldly removed ALL restrictions on abortion throughout the pregnancy up until natural delivery. This means that a surrogacy contract, if it doesn’t specify a termination deadline, would require the Surrogate to travel to another state and get an abortion as allowed under that state’s laws, which could be well into the 3rd trimester.
Surrogacy Doesn’t Struggle with Unwanted Pregnancies, only Undesirable Ones
With surrogacy arrangements, we don’t run into the issue of an “unwanted pregnancy” or “forced parenthood” that we often hear bantered about in the public domain abortion discussions. All Intended Parents using surrogacy desperately desire to have a child and are doing so at great cost, both emotionally and financially. Surrogates voluntarily sign-up to get pregnant for someone else in the hopes of fulfilling the dreams and desires of their Intended Parents. Make no mistake, no Surrogate or Intended Parent(s) gets involved in a surrogacy journey thinking they are going to have to terminate a pregnancy. Abortion requests are very rare given that most embryos undergo diagnostic testing like PGT prior to implantation. However, things do come up that are beyond everyone’s control, and then it is usually the Intended Parent(s) who decide whether or not to terminate an undesirable pregnancy. The Gestational Carrier, whether she agrees with the Intended Parents’ decision or not, is the one who must undergo the procedure.
Most surrogacy agencies ask their Surrogates if they are willing to terminate the pregnancy at the request of the Intended Parents. It tends to be an unnuanced question on the questionnaires that offers a binary choice, yes or no. Adamant pro-lifers refuse and choose NO, and then they are only matched with like-minded Intended Parents who are willing to give up the option of aborting. Most Surrogates choose YES, signaling they will allow the Intended Parents to decide on abortion; it is the Intended Parents’ baby, after all. What most agencies fail to do is ask their Gestational Surrogates how far along into the pregnancy she is willing to give the Intended Parents the contractual right to decide on termination. Again, if the surrogacy contract doesn’t set some guardrails or limitations on when the abortion can take place, then the Surrogate may have just agreed to terminating the pregnancy well into the 3rd trimester. This may not be what you meant when you checked YES to the questionnaire’s abortion question.
In cases where developmental issues are identified early and a termination request is made, most Surrogates are perfectly willing to carry out the Intended Parents’ request. Typical surrogate benefit packages already have a compensation provision in the event an abortion is conducted. But, as the pregnancy develops and the child continues to grow inside the Surrogate’s uterus, the contractual obligation to terminate a pregnancy carries a different meaning. Regardless of how adamantly pro-life or vehemently pro-choice you are, 3rd trimester abortions are just much more demanding on the Surrogate, both physically and emotionally. This can be exacerbated if the Gestational Surrogate and the Intended Parents do not agree on the severity of the medical condition being used to justify such a late-stage termination. If you read about how abortions are done in later stages of the pregnancy, my guess is that you will likely conclude that the amount you are being compensated to go through that procedure is woefully inadequate. I have yet to see a benefit package that distinguishes a Termination Payment based on which trimester the abortion occurs in.
What Are Some of Your Options?
The easiest option is to set a termination deadline. This additional clause to the termination provision gives the Intended Parents the authority to decide on abortion up to a certain point (maybe the 26th gestational week). Any termination request after that becomes just that, a request and not a requirement. Be mindful that Intended Parents generally don’t like gestational age cutoffs because they feel arbitrary and it makes the Intended Parents feel less in control, and that is true. The purpose of the termination deadline is to give you some control back over deciding if you terminate late in the pregnancy. You could always decide to grant the Intended Parents’ request to terminate after your deadline has passed. But with a termination deadline in place, it would be your decision whether to terminate, and not a contractual obligation that would carry harsh financial consequences if you decide not to.
A second option is to require that any third trimester termination request carry along with it a medical consensus that the child will likely not survive the delivery, will have a significantly reduced lifespan, or a substantially diminished quality of life. This option brings the medical team into the discussion so that if you are asked to undergo a 3rd trimester abortion, there is a really, really good medical reason justifying it. I’m not suggesting that an Intended Parent would ask their Surrogate to terminate super late for something minor, but there are a lot of different interpretations about what constitutes a diminished quality of life. For instance, some issues are very serious, but potentially correctable with surgery.
Another option is to negotiate a termination provision that distinguishes early termination from those in the 3rd trimester. Most surrogate benefit packages I see offer between $1500-2500 for a termination, which might be fine for a procedure done in the first 2 trimesters. I don’t know what you would need to feel adequately compensated for a 3rd trimester abortion, but probably something more than the standard provided.
A final option is to reject the travel provision for abortions. This would mean the contract couldn’t require you to leave your home state to obtain a termination, and your state’s abortion laws would dictate when, and for what reason, you could get an abortion. If you live in a Blue State, probably not a big deal. Conversely, if you are in a Red/White State, this could severely limit the pool of Intended Parents that are willing to work with you.
Make Your Preferences Known
One of the best things you can do about the abortion issue is to be open and transparent with the surrogacy agency, the Intended Parents, and your attorney. The extremes on either side (no abortion for any reason, or abortion whenever the Intended Parents want) are not really going to be affected by these state level changes. Most Surrogates, however, are going to land somewhere in the middle; they will allow their Intended Parents to decide on termination up to a certain point. The question then becomes: at what point in the pregnancy are you no longer comfortable obligating yourself to terminate the pregnancy? Make sure that you understand what your contract will require you to do when it comes to termination, and that you are comfortable with those obligations.
If you need someone in your corner to help you navigate this very difficult and emotionally charged topic, please Contact Me, I’d love to the opportunity to work with you and support your best interests on your journey.
