Clash of the Titans: Escalating Conflict Between Surrogacy Contract Provisions and the Recriminalization of Abortion

ABSTRACT

What will the practice of surrogacy contracting look like in states where abortion is significantly restricted or banned, and how will it impact the wider baby market? Using various sources of data, this article analyzes the escalating conflict between parties to surrogacy contracts and states that have either increasingly restrictive abortion laws or de facto criminalize abortion following the reversal of Roe v. Wade. Abortion and related clauses are standard terms in surrogacy contracts, which manage medical and legal risks. However, state laws that now restrict abortion during a surrogate’s pregnancy destabilize practices in states where gestational surrogacy is otherwise legal and institutionalizing. I map the overlap between states permissive of gestational surrogacy and simultaneously restrictive of abortion, then examine the consequences. How will conflict between two reproductive rights “titans” ultimately be resolved on the ground by the parties who navigate the risk and burdens of legal ambiguity and uncertainty?

KEYWORDS:

• Abortion
• surrogacy
• assisted reproduction
• contracts
• risk management

Acknowledgments

Data collection for this work was initially supported by a National Science Foundation Doctoral Dissertation Research grant, Award #1123500, and supplemented more recently with grants from the UCI Dean’s Research Fund for Teaching Faculty and the UCI Council on Research, Computing and Libraries. Special thanks to Joanne Amanda Sharry, MPP for her graduate student research assistance.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. For example, see Oklahoma State House Bill 4327, signed into law by Governor Kevin Stitt (R) on May 25, 2022, which has prohibited abortion after “fertilization” as defined by Sec 1 (2), “the fusion of a human spermatozoon with a human ovum” Further, Sec 1 (4) defines “unborn child” as a “human fetus or embryo in any stage of gestation from fertilization until birth.”

2. As Adam Liptak reported for the New York Times, the notion that Roe and Casey are “super-precedents” came up when asserted as such by Pennsylvania Senator Arlen Specter during Chief Justice John Roberts confirmation hearing in 2005, measuring Roberts’ perspective on the concept of stare decisis for long-held precedents (“With Roe at Risk,” Dec. 13, 2021).

3. Mississippi HB 1510 (2018), which bans abortions after 15 weeks since the last menstrual period into gestation except in medical emergencies and “severe fetal abnormality,” does not contain exceptions for rape or incest.

4. While Chief Justice Roberts voted to uphold Mississippi’s Gestational Age Act in Dobbs, he did not vote to fully overturn Roe v. Wade.

5. While there was more legal conflict and ambiguity across states even 10 years ago in terms of whether gestational surrogacy contracting was legal, trends have been in favor of legalization, and actual practices have diffused in counties that issue pre-birth parentage orders even in states where the formal law is silent or hostile on surrogacy by either statute or case law. Since 2012, many states have shifted from prohibiting the practice to enacting statutes formalizing gestational surrogacy (Rebouché 2019), like New Jersey (2018), Oklahoma (2019), and especially New York (2021), which reversed position from criminalizing the practice to enacting the most protective law in the nation with a surrogate’s “bill of rights” (Williams 2021). More importantly, only three states still formally prohibit paid surrogacy “on the books:” Louisiana, Michigan, and Nebraska. A fourth state, Indiana, maintains a prohibition on the books, but in practice county courts allow pre-birth parentage orders. A fifth state, Arizona, has a statute prohibiting surrogacy but a case decision that recognizes “Gestational Carriers” and “Intended Parents” rights in legal disputes. Recent court activity shows Arizona does not allow surrogacy in practice, and reproductive lawyers find it too risky to test it (Smulison 2022).

6. There is even lack of harmony of legal practices within states that differ depending upon county and judge. Paid pregnancy remains banned in most countries around the world based on public policies against “baby selling” and the trafficking in children.

7. Examples including formally naming the surrogate as the “carrier” or “gestational hostess” and specifically not the “mother,” rules and provisions referring to the fetus as the intended parent(s) “child” and baby, rules that direct the surrogate’s diet, surveillance practices, prohibitions on viewing or handling the baby upon birth or future contact, and rules against breastfeeding. I have argued that these rules, provisions, and practices are an emotion-management strategy designed to minimize risk of breach in an unsettled legal field, and to either manage emotional attachment between the surrogate and the fetus in gestation, or cultivate same during the surrogacy process (Berk 2015).

8. Louisiana Surrogacy Bill HB 1101 (2016) prohibits any compensation for surrogacy, and allows gestational surrogacy only for heterosexual married couples who use their own gametes subject to civil and criminal penalties; Michigan Surrogate Parenting Act MCL Sec. 722.851 holds all contracts “void and unenforceable as contrary to public policy,” recently affirmed by Tammy and Jordan Myers’ case, intended parents forced to adopt their genetic twins in 2021; Nebraska R.R.S. Sec. 25–21, 200 (2007) states, “a surrogate parenthood contract entered into shall be void and unenforceable.”

9. Arizona Revised Statute Sec. 25–218, passed in 1988 states “no person may enter into or assist in creating a surrogacy contract;” see Soos v. Superior Court (1994).

10. Indiana Code Sec. 31-20-1-1.

11. AAARTA, ACOG, and other organizations have professional guidelines and principles against the practice; legal scholars who study the bioethics of reproduction warn against the practice, but with caution given broader motives of the anti-abortion movement. Seema Mohapatra has written about sex selection or “gendercide” (Mohaptra, 2015), and in a related context, Alicia Ouellette who examines fetal termination when testing is positive for a disability, like Down Syndrome (Ouellette, 2015). Rachel Rebouché tackles both, and notes that the state laws have banned sex and race-based abortions, along with those for genetic anomaly (2015). PRENDA is federal legislation that would prohibit abortions based on sex and race of the fetus (Guttmacher Institute 2022). As of the drafting of this article, 11 states ban abortions for reason of sex selection, 4 states for reasons of race, and 6 when the fetus may have a genetic anomaly (Id.). Scholars point out that advocates of bans on sex, race, or anomaly reasoned abortions claim to be “women protective,” but in fact, are part of a wider movement to make all abortions illegal (Jesudason and Weitz 2015; Mohapatra 2015).

12. As a matter of law “on the books,” the fundamental constitutional right to abort – or not abort – a fetus still lies with the surrogate carrying it (Planned Parenthood v. Casey US 1992). However, in practice, her decision to abort, or fail to when demanded by intended parents paying for the process, leads to disputes and breaches of contract. The financial fallout from that breach will typically disproportionately burden a surrogate who may not be able to bear the costs or adequate legal representation.

13. A “pre-birth order” is a relatively new legal procedure that allows intended parents in surrogacy cases to legally establish their parentage before the baby is born, while the fetus is gestating in the surrogate’s uterus. These orders trump the Uniform Parentage Act rule that the gestational mother is the “natural” or “birth mother.” State courts have increasingly recognized pre-birth parentage orders, especially in cases where the surrogate is carrying a fetus genetically related to the intended parents, or using donor gametes (Crockin and Jones 2010) Crockin and Jones 214).

14. Evidencing the unsettled and complex nature of abortion provisions in the contract, on March 5, 2013 CNN.com and multiple networks broadcast the story of Crystal Kelley, a gestational surrogate who fled to Michigan to give birth to a baby she refused to abort against demands by the intended parents. At 20 weeks, the fetus was known to have severe abnormalities. Kelley’s surrogacy agreement drafted in Connecticut contained a provision promising to terminate the pregnancy under these conditions. She changed her mind. Since surrogacy is a crime in Michigan, giving birth there established Kelley as the legal mother, voiding the contract (I. G. Cohen 2013; see also E. Cohen 2013) http://www.cnn.com/2013/03/04/health/surrogacy-kelley-legal-battle/index.html). There have been other cases since, including that of Melissa Cook.

15. “Overturn of Roe v. Wade Could Make Some States Hostile to Surrogacy” (Vaughn 2022b) and “Devastating Supreme Court Decision Strips Women of the Right to Choose” (Vaughn 2022a); https://www.iflg.net/rich-vaughn-blog/

Additional information

Funding

This work was supported by the UC Irvine Academic Senate Council on Research, Computing and Libraries [2022]; National Science Foundation Doctoral Dissertation Research Grant Number [1123500].

Notes on contributors

Hillary L. Berk

Hillary L. Berk, PhD, JD is an Associate Professor of Teaching in the department of Criminology, Law and Society at the University of California Irvine and Director of the Social Ecology Honors Program. She has won several awards for engaged, interactive teaching, as well as for novel socio-legal research on assisted reproduction and surrogacy contracting. Her research examines the ways in which social norms about gender, family, and work both constitute and are constituted by a variety of legal practices and institutions. She received her PhD from the Jurisprudence and Social Policy program at the University of California Berkeley and her JD from Northwestern School of Law, Lewis and Clark College, where she also earned a Natural Resources Law certification. Among other work, she is author of “The Legalization of Emotion: Managing Risk by Managing Feelings in Contracts for Surrogate Labor” (2015) published in the Law & Society Review and “Savvy Surrogates and Rock Star Parents: Compensation Provisions, Contracting Practices, and the Value of Womb Work” (2020) in Law & Social Inquiry.