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”