Since the Dobbs v. Jackson decision in June of 2022 overturned the unconstitutional Roe decision, there has been a surge in questions surrounding the surrogacy industry. While many dispute the ethical and moral implications of surrogacy, one aspect of surrogacy services has gone virtually unnoticed. Believe it or not, many surrogacy contracts include a clause explaining that a surrogate mother must comply with the wishes of her “clients” should they want to abort the child originally requested. So much for “my body, my choice;” it is her body, their choice in these contracts.
It is truly shocking to see a baby treated as a commodity, but this is exactly what is happening today. Should a fully conceived and growing child be aborted simply because the family who wanted him or her changes their mind? Should the child be aborted because the family wanted it to be a different sex, have different hair color, or any other characteristic desired by the couple? In some instances, twins or triplets are conceived, and the family only wished for one child. What then? Per most surrogacy contracts, the family can request that the surrogate engage in what is called “selective reduction,” or the aborting of one or more of the babies so that the desired number of children remain. The ethical and moral ramifications of such contract clauses are thankfully being called into question more frequently than ever before. Should children, born or preborn, be subjected to the whims of such egocentric family planning schemes?
What happens when a surrogate mother refuses to comply with a family’s wish to abort a child or engage in “selective reduction”? The answer is complicated. Sometimes the surrogate will offer to adopt the unwanted child, but the contract may even prohibit such action. In other cases, the surrogate may be locked in a legal battle with the family for years after the child is born against the family’s wishes. Often, the child must live with the intended family during litigation even though they are expressly unwanted.
Several real-life stories illustrate the nightmare that abortion clauses to surrogacy contracts create. The first is the story of Melissa Cook, a 49-year-old mother of four at the time, who took a contract as a surrogate to carry a child for a 50-year-old deaf man known only as C.M. Per normal procedure, more than one embryo was transferred into Cook to increase the chances of one of the embryos being implanted. Miraculously, all three of the embryos implanted, and Cook discovered she was pregnant with triplets.
This was not what C.M. wanted, and instead of agreeing to take care of the triplets or finding parents willing to adopt, C.M. is quoted as saying to Cook, “I’m not sure I can have three kids after all. I’m not sure if I even want one.” Shortly after that, Melissa said that, “… both the baby daddy and his lawyer – the agency owner – began to threaten [her] with messages and by phone, saying that if [she] didn’t reduce or abort, they would not pay [her] for delivering any of the babies” and “… they all insisted that [she] was in violation of the contract, and the payments to [her] stopped completely.” Cook, who was forced to surrender the triplets to C.M. shortly after birth, looked to pursue litigation against C.M. and the surrogacy agency. She claimed that her contract was unconstitutional for forcing her to abort against her will. Tragically, her case was denied in the Federal Appeals Court for the Ninth Circuit and her appeals to the Supreme Court were also denied twice.
Equally unsettling is the story of Crystal Kelley, who agreed to carry the baby of a couple who she described as “attentive, caring.” Five months into her pregnancy, Kelley knew something was wrong. An ultrasound revealed that the baby had a cleft lip and palate, a cyst on her brain, and critical heart defects. Doctors explained that the baby would need several heart surgeries after she was born and only had a 25% chance of living a normal life. The parents “[felt] that the interventions required to manage the baby’s medical conditions [were] overwhelming for an infant, and that it [was] more humane … to consider pregnancy termination.” Kelley disagreed. The result of the emotional standoff was the parents offering Kelley an additional $10,000 to abort the child. Kelley, set in her convictions, refused. Kelley’s lawyer only reminded her that she was in violation of her contract to “abort in case of severe fetal abnormality”. As a result, Kelley flew 700 miles to Michigan, seven months pregnant, and waited to give birth. The child, born with severe disabilities, was then matched with adoptive parents who knew how to care for the child’s medical challenges.
Both Melissa’s and Crystal’s stories are heartbreaking but also preventable. Had there been a provision in law that required these want-to-be parents to care for the child or surrender it for adoption, perhaps the damage of these horrible situations could be minimized.
Rep. Andy Ogles (R-Tennessee) has introduced a bill titled Preventing Forced Abortions Act. This law would prohibit federal courts from enforcing any part of a surrogacy contract that requires a surrogate mother to get an abortion against her will. These provisions are frankly immoral and unconstitutional.
The bipartisan support for Rep. Ogles’ bill is evidence that, beyond surrogacy’s moral and ethical questions, one thing can be agreed upon – a woman should never be forced to get an abortion, regardless of her circumstances.
Rep. Ogles’ bill accomplishes this, and therefore, Concerned Women for America Legislative Action Committee supports this legislation.