A recent dispute between Melissa Cook, a California surrogate, and a commissioning father has brought to light the complexities of having abortion decision clauses in surrogacy contracts. Specifically, the enforceability of such clauses comes into question when surrogates and parents disagree on who should make decisions regarding abortion.
Melissa Cook was carrying triplets and the commissioning father wanted her to abort one of the fetuses. Cook filed a lawsuit in Los Angeles Superior Court, claiming that state surrogacy laws violated due process and equal protection under the Constitution. As an alternative resolution, Melissa Cook wishes to carry all three fetuses to term, adopt the third child and also collect her surrogacy fee. This would require the court to deem Cook’s surrogacy contract unenforceable, allowing her to breach the contract and still keep her surrogacy fee in full.
Women who agree to become a gestational surrogate enter into legally binding contracts with commissioning parents. Included in the terms of these contracts is a clause that allows the parents to make decisions about abortion. Doctors implant multiple embryos to increase the chances of fertilization but thereby also increase the likelihood of multiple gestations. Intending parents whose surrogate carries multiple fetuses sometimes request that the surrogate abort, or “selectively reduce,” one or more of the fetuses. The surrogacy contract ensures that, in situations where termination decisions must be made, all parties are on the same page. Some surrogacy agencies take steps to match surrogates with parents who share the same views on abortion to minimize the likelihood of a conflict.
Allowing surrogacy contracts to mandate that a woman abort a fetus creates many legal questions, including who is the true parent of the fetus and who should make decisions regarding abortion. As Elizabeth Reis, a professor at City University of New York explains, what makes these questions all the more difficult is the fact that after a surrogacy contract is signed “there is no way to know how [a surrogate will] feel when [she is] pregnant and ordered to reduce.”
In Cook’s case, the fetuses legally belong to the father. However, this does not necessarily mean that the father’s wishes will be honored. No court would force Cook to abort her pregnancy. Nevertheless, even if she does not abort, under California law, the commissioning father has the right to decide what happens to the child, including having the child adopted by a third party other than Cook. This creates an inherent tension in modern surrogacy contracts which can conflict with women’s right to privacy. Even though a surrogate has a constitutional right to undergo an abortion, or to choose not to, she has no constitutional right to receive payment under the terms of a surrogacy contract. It remains unclear how such recent disputes will be resolved by the courts or how they will change surrogacy regulation, but many lawyers believe that surrogacy contracts will become much more heavily regulated as a result.