// you’re reading...

Assisted Reproduction

Abortion Clauses In Surrogacy Agreements Are Not Enforceable

I have been responding to many inquiries, both media and via this blog, about the enforceability of “abortion” provisions in a surrogacy agreement. While typically referred to as “termination”, “fetal reduction” and/or “selective reduction” clauses, it needs to be reiterated that they are unenforceable. There is no equitable remedy available to an Intended Parent — meaning they cannot legally enjoin a surrogate from terminating a pregnancy nor compel her to end one. Let me be unequivocally clear about this — no Intended Parent has that right nor should they.

This is not inconsistent with the general principle that the gestational carrier is not the legal parent of the child. Rather it recognizes and respects the right of all women, surrogate or otherwise, to make decisions regarding her own body. As I have repeatedly stated, a husband cannot force his wife to have an abortion nor stop her from having one. Neither can nor should an Intended Parent.

Also, for those asking, every one of our surrogacy agreements specifically states, among other things:

All Parties understand that a pregnant woman has the absolute right to abort, or not abort, any fetus she is carrying and any promise to the contrary may be unenforceable. In all events, the Gestational Carrier’s right to make decisions regarding her body and to safeguard her health shall not be limited by anything in this Agreement.

So as you read these news accounts about how Intended Parents are trying to “force” their surrogates to undergo abortions, please do not take the bait. Everyone knows and understands that a woman has a fundamental right to choose and nothing in a surrogacy agreement can abrogate that constitutional protection. The reality of the current situation is that certain anti-choice groups are demagoguing this issue with the objective to end legalized abortions, IVF treatment for infertility patients and denying access to assisted reproduction to those in need of these technologies to start their families.


One comment for “Abortion Clauses In Surrogacy Agreements Are Not Enforceable”

  • Elaine

    Surrogacy is a hard way not only for infertile couple, but also for surrogate mother. For surrogate mother it is usually very hard to leave the baby. I have seen some surrogate mothers that were crying leaving babies. But it is like natural human reaction. During the nine month there was contact between gestational carrier and baby. It is really strong connection with a baby bearing it. But I don’t think that it would cause significant damage for birth mother and child. Surrogate mother should be prepared to leave. Surrogate mothers must have physiological consultations and support. I’ve mentioned it because our surrogate mother had it. And of course there should be strong reasons to become surrogate mothers. As we are talking about gestational surrogacy not traditional. The birth mother is not connected biologically the child. From this point of view it is more justified that traditional surrogacy. And I think traditional surrogacy isn’t used any more if I am not mistaken. And concerning the children I think it is not obligatory to tell them the truth. I understand that it would be hard to conceal it. However, here we need to choose. We need to be very careful with their psycho. It is very fragile. Once hurt, it is very difficult to restore it. We are not obliged to tell all the details of birth and bearing to our child. Maybe in some cases adoption can be alternative. But it is not always a way out. There are a lot of problems appearing with the adoption. I have nothing against it but it is really very difficult. But this process can take several years. Meanwhile it is pleasure to raise a baby since the birth. And that child will not be genetically connected neither my husband nor me. Surrogate mother and donor should be different. Maybe the legislation concerning the surrogacy can vary. But when I was treated in Ukraine there was special legislation. That legislation did not permit surrogate mother to be a donor. Also one parent had to be genetically connected to a child. And there should be strong medical indications for surrogacy such as infertility or age. So these positions seem to be honest.

Visit Us On TwitterVisit Us On FacebookVisit Us On LinkedinCheck Our Feed