Can a Surrogate Mother Be Forced to Have an Abortion?

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By Christopher Coble, Esq. on January 12, 2016 10:10 AM

Commercial surrogacy sounds like a simple plan on the surface: a person or couple who can't otherwise have a child agrees to pay a surrogate mother to carry a baby through pregnancy. The person or couple now has the child they always wanted and the surrogate mother has been compensated.

But it's not always that easy, as recent cases in California have shown. There, two women carrying triplets were asked to abort one of the fetuses. One was even threatened with legal action if she didn't, and filed her own lawsuit to prevent a forced abortion. So what rights do biological parents and surrogates have under surrogacy contracts, and do those cover abortions?

Selective Surrogate Rights

Melissa Cook had agreed to be a surrogate for a Georgia man who wanted to have twins. But when she became pregnant with triplets, the man allegedly asked her to undergo a "selective reduction" and terminate one of the embryos. The man also allegedly threatened to sue Cook for money damages if she refused.

So Cook filed her own lawsuit in California, seeking to block any abortion and claiming state surrogacy laws violate due process and equal protection rights. Cook told the Washington Post:

"I no longer view surrogacy arrangements in the same favorable light I once did. I have a deep empathy for men who want children. However, I now think that the basic concept of surrogacy arrangements must be re-examined, scrutinized and reconsidered."

According to the biological father's attorney, the man has accepted Cook's decision, but her lawsuit could still have ramifications on surrogacy law in California and nationwide.

Constitutional Surrogacy Scrutiny

While surrogacy law can vary by state, not all surrogacy contracts are enforceable. Some states prohibit surrogacy contracts altogether and some only allow them if the surrogate mother is not financially compensated. Meanwhile, not every provision in a contract is enforceable, even in the states that allow them. And a clause allowing a biological parent to force a surrogate mother to undergo an abortion would likely never be enforced.

Cook's attorney says his new client's surrogacy contract and California's current surrogacy law "will not withstand constitutional scrutiny":

"The notion that a man can demand that a mother terminate the life of one of the children she carries by an abortion, and then claim that she is liable for money damages when she refuses, is cruel to the mother. The idea that when a mother offers to raise the child that the man wanted her to kill, but the man insists that the child be raised by a stranger instead of the mother who loved him and saved his life, is cruel to the child."

Whether Cook's lawsuit changes surrogacy law in California remains to be seen. If you are considering a surrogacy contract, you may want to consult with an experienced family law attorney beforehand.

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