In the case of Dobbs v. Jackson Women’s Health Organization (2022), the United States Supreme Court overturned the landmark case of Roe v. Wade (1973) and found that the U.S. Constitution does not protect the right to an abortion. In Dobbs, the Supreme Court reviewed the constitutionality of Mississippi’s Gestational Age Act—a law banning most abortions after 15 weeks of pregnancy with exceptions for medical emergencies and fetal abnormalities. In a divided opinion, the Court upheld the Mississippi law and overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992)—concluding that the Constitution does not protect the right to an abortion. As a result, the Court’s decision returned the issue of abortion regulation to the elected branches.
Since that decision, twenty-two states now ban abortion or restrict the procedure earlier in pregnancy than the standard set by Roe in 1973. Other states are not only limiting or banning abortion, but also implementing criminal penalties for those that “aid and abet” someone having an abortion. In many states, the fight over abortion access is continuing to rage on. As anti-abortion politicians and policy-makers continue to seek to restrict access to reproductive care, more and more intended parents and gestational surrogates are concerned about the impact of abortion restrictions on surrogacy.
Here is the best advice we have right now (September, 2023). Please keep in mind that this is one area that is ever-changing and that this advice may be inapplicable to future circumstances. Access to abortion is now highly state specific. So it’s also important to obtain advice relevant to the state where your gestational carrier lives.
- Compatibility – It is more important than ever before for intended parents and gestational carriers to be on the “same page” about when and under what circumstances a termination of the pregnancy may occur. Although this is an admittedly delicate and awkward issue to discuss, it’s necessary to ensure that if this decision ever needs to be made, the outcome is what all parties expected it would be.
- Talk with your Agency – Surrogacy agencies are often recruiting carriers in multiple states at all times. As such, agency personnel often has up-to-date information on the bans and restrictions in any given state as well as what attorneys, surrogates, and intended parents in those states are doing about it. They can be a wealth of information about how to plan for abortion bans or restrictions.
- Genetic testing – The availability and accuracy of genetic testing of embryos allows for a greater likelihood that a healthy embryo is transferred and reduces the chances that a fetus will be diagnosed with a catastrophic medical condition. As terminating the pregnancy may be more restricted or unavailable, more and more intended parents are seeking out methods to ensure the embryo that is transferred has the best chance to become a healthy baby.
- EXPERIENCED Legal Advice – There has always been a “termination and reduction” section in every gestational surrogacy agreement. But it’s critically important now that the attorney drafting that section is an experienced assisted reproductive technology (ART) lawyer. As abortion laws vary state by state and can change on a daily basis, you need a lawyer who is on the “front lines” of legal issues in surrogacy. The exact wording of the legal contract matters a lot with regard to this particular issue. This is not the time to have your neighbor’s daughter’s husband who is a real estate lawyer “take a crack” at drafting your surrogacy agreement. The best ART lawyers in each state in the country can be found here. The attorneys who are “fellows” of this organization receive ongoing and relevant training to ensure they are qualified to guide you through these issues.
- Don’t be discouraged – Surrogacy is alive and well in most states, including those with abortion bans or restrictions. Emerging data shows that the vast majority of Americans support access to IVF and other forms of assisted reproduction and that even people who support bans on abortion do not necessarily support bans on IVF or surrogacy. Stay the course and follow the advice above. This may be a speed bump, but it’s not a roadblock to your family building journey!
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