Abortion and Selective Reduction Clauses In Surrogacy Contracts: What Every Intended Parent and Surrogate Needs to Know


After years of waiting, hoping, and trying, parenthood is within reach: the IVF worked and your gestational carrier is pregnant. Now, an early prenatal visit reveals that the surrogate is carrying a high-order multiple pregnancy. Instead of the hoped-for singleton pregnancy-or even twins-the physician has detected four fetuses. For another couple, a routine ultrasound at the beginning of the second trimester reveals a potential problem with the fetus. A high level ultrasound follows, perhaps with amniocentesis. The diagnosis is confirmed-the fetus is suffering from severe birth defects that will almost certainly, drastically impair the child's quality of life, if the baby survives at all.

The prospect of quadruplets, or a baby born with severe birth defects, is news no parent wants to receive, but for parents who are creating a family through assisted reproduction, the difficulty of the situation may be greatly magnified. For while expectant parents in this situation doubtless face an agonizing choice about whether to undergo selective reduction in the first instance, or to terminate the pregnancy in the second, intended parents must wrestle not just with their own feelings and desires, but with those of the woman carrying their child.

Who has the right to make this decision under the law? If the intended parents want to reduce or terminate the pregnancy and the surrogate disagrees, whose wishes will control the situation? This article will provide an overview of the laws surrounding these fraught decisions and provide some guidance about how best to prepare for and respond to this crisis, should it should arise.

The Contract

Most surrogacy contracts contain some kind of provision addressing the issue, or specify pregnancy termination and selective reduction. Often, the contracts provide for the intended to parents have the right to make all termination or selective reduction decisions. Contracts sometimes contain more specific instructions, particularly regarding selective reduction. The parties may agree, for example, that the intended parents will not reduce for gender selection purposes. The parties may also state an agreement in the contract about the maximum number of embryos to be transferred, as well as the circumstances which can trigger a reduction (e.g., that triplets be reduced to twins or twins to a singleton). Although contracts often contain abortion and selective reduction provisions such as these, most experts believe that these clauses are unenforceable, at least in the way intended parents might expect.

The Law

There are two ways a contract provision might be enforceable - through specific performance or by a suit for damages. In the case of specific performance, the intended parents would ask the court to compel the surrogate to undergo the termination or reduction procedure, even over the surrogate's objection. Alternatively, the intended parents could sue the surrogate for breach of contract and attempt to recover monetary damages for the surrogate's decision to continue with the pregnancy against the intended parents' wishes.

No legal case has yet ruled on this kind of contract claim. While a few disputes over termination in reference to a birth defects situation have been reported in the media, no court has yet decided whether these clauses are enforceable by any means. Nonetheless, we can make some predictions about the probable outcome in such cases.

In some states, surrogacy contracts are considered against public policy and thus, no aspect of the contract would be enforceable. Even in states that expressly allow surrogacy contracts generally (or have no clear law on the subject), courts may view these clauses as against public policy and refuse to enforce them. This outcome is particularly likely because of concerns over the constitutional rights of the surrogate.

In a series of decisions beginning with the famous case of Roe v. Wade, the U.S. Supreme Court has recognized that a pregnant woman has a constitutional right to terminate a pregnancy prior to the point of viability under the due process clause of the 14th amendment. The point of viability is the time at which the fetus could sustain life outside the womb. While the exact point of viability varies in any pregnancy, generally it is considered to be at about 24 weeks. In recent years, a number of states have passed restrictive abortion laws that purport to prohibit abortions for any reason, as early as twenty weeks. These laws have been challenged in the courts, but no definitive ruling from the Supreme Court has yet come down. Thus, time pressure can be a significant factor, if birth defects are not discovered until the second trimester of pregnancy. Even if the intended parents and surrogate agree on termination, they may lose that option if they do not act quickly enough. When the parties disagree, this time limit often leaves little time for the parties to absorb the news and work to resolve the dilemma.

Perhaps more importantly, these cases establish that the right to terminate a pregnancy rests with the pregnant woman. Even a spouse has no right to veto or even be notified of a woman's decision to terminate. Consequently, the right belongs to the surrogate, not the intended parents.

However, where the parties have entered into an agreement, the intended parents could argue that the surrogate waived her right to decide whether to terminate or to selectively reduce the pregnancy. Although constitutional rights can often be waived, most experts agree that a court is unlikely to accept the waiver in this context, especially in considering a request for specific performance. Specific performance is not generally available to enforce contracts for personal services, unless they have a unique and personal value. While surrogacy contracts would seem to fit that description, a termination clause would likely be viewed as an unreasonable invasion of the surrogate's privacy, so the court would almost certainly decline to order specific performance.

It might be argued that selective reduction is a less intrusive procedure and thus not an unreasonable invasion of the surrogate's privacy. The usual procedure involves an ultrasound-guided injection of potassium chloride solution into the fetus to stop its heart. Moreover, selective reduction would improve the chances of a healthy outcome for the remaining fetus(es). Nonetheless, instances of compelled medical procedures in any context are rare, and the goal of selective reduction-fetal demise-even for the sake of the other fetus(es), would likely make the court reluctant to order specific performance.

Whether the intended parents could recover damages for breach of the abortion provision, presents a closer question for both termination and reduction. The law generally favors enforcement of contracts. However, courts will decline to enforce contracts they deem against public policy, and the same concerns about the surrogate's constitutional rights and privacy could lead a court to declare these provisions unenforceable even in a suit for damages.

Ways to Minimize the Risk of Conflict

Given that a court will not order a surrogate to terminate or selectively reduce a pregnancy against her will, and may not award damages for breaching her agreement to do so, intended parents cannot rely on the contract to ensure that their wishes will prevail. However, there are steps the parties can take to try to avoid a disagreement over termination or reduction of the pregnancy, or to resolve it, should the need arise.

  • Be sure the intended parents and surrogate are a good "match" on these issues.

Many individuals feel strongly about abortion. Parties should not assume they know how the other side feels on this issue without directly confronting it. As difficult as the prospect of terminating a much-desired pregnancy may be to contemplate, all parties should thoroughly consider the possible scenarios that might arise, including significant birth defects, and openly share their views about termination. The parties should discuss the issue with both the treating physician and legal counsel. The mental health evaluation of the surrogate should cover this issue, and counseling of all parties might be useful as well, to help elicit the thoughts and concerns of the parties. Ultimately, the intended parents and surrogate should agree on under what circumstances, if any, the surrogate would be willing to terminate the pregnancy at the time the contract is signed. If they can't agree, it is time to find another surrogate.

Likewise, all parties need to understand the risks of multifetal pregnancy and thoroughly discuss ways to avoid this outcome and to deal with it if it arises. The risk of multifetal pregnancy can be greatly reduced by using single embryo transfer, though that approach may not be appropriate in all cases and still cannot guarantee that a multiple pregnancy will not occur. Here too, the contract should memorialize the parties understanding about the maximum number of embryos to transfer and whether selective reduction will be pursued in the event of a multifetal pregnancy, as well as the specific parameters of that agreement (e.g. pregnancy will be reduced to twins if higher order multiples are conceived).

  • Include the agreement in the contract

It may seem counterintuitive to recommend that the agreement regarding termination or selective reduction be included in the contract, given that the provision would likely not be enforceable. However, it is critically important the parties at least start out on the same page on these issues. Spelling out the terms in the contract, increases the odds that the parties have actually come to agreement, and gives them another chance to affirm their views.

  • If the worst happens, consider alternative dispute resolution

In some cases, even with the best planning, the intended parents and surrogate may disagree about whether to terminate or reduce the pregnancy. A willingness to terminate when the possibility is a remote "worst-case" scenario may disappear when confronted with the actual decision after months of pregnancy. If the surrogate refuses the intended parents' request to terminate or reduce, the intended parents do retain the option of suing for breach of contract, but given the very uncertain outcome, they should think carefully before taking that step. The likelihood of prevailing in court is small, and the surrogate may not have the financial means to pay a judgment. A more fruitful approach might be to pursue mediation or to consult a hospital bioethics committee.

Conclusion

Fortunately, disputes over termination and selective reduction are rare, but significant birth defects are a possibility in any pregnancy, as is multifetal pregnancy. Intended parents and their surrogate need to understand the risks and agree upon how to deal with these issues, should the need arise. Intended parents especially, also need to appreciate the limits of the law and their ability to control these decisions. Careful and thorough medical, legal and mental health counseling can help minimize the likelihood of a painful dispute arising, but cannot eliminate the risk entirely.

Deborah L. Forman is a Professor of Law, Whittier Law School and Of Counsel, International Fertility Law Group

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