Why Is Surrogacy Affected By Roe V. Wade?

On May 2nd, 2022, a draft Supreme Court opinion was leaked, and then on June 24, 2022 it was released. The unprecedented leak gave insight into the future of Roe v. Wade, the groundbreaking 1973 decision that established abortion and reproductive rights in this country. The opinion, written by Justice Samuel Alito, states that “Roe was egregiously wrong from the start” and “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This opinion means a massive change in the right and access to termination across the country. 

This decision brings up many questions, especially for families undergoing Alternate Family Planning processes. Due to the vague nature of the decision and the intricacies of medicine, uncertainty is bound to arise. Will IVF become illegal? Do I still get to decide what to do with my frozen embryos? How do we plan for termination in a pregnancy?

Going through the surrogacy process is already nerve-wracking and difficult for intended parents without having to question whether your contract has validity. We hope to clear some of those questions up here.

Why is Termination Important for Surrogacy?

To start, we need to address why termination rights are important for surrogacy. Not all surrogacies result in a child, and many times it is one of the most heartbreaking things in the world. Not many families would choose to end a pregnancy via surrogate, but over the course of a pregnancy, issues could arise that create life-threatening situations for the surrogate mother or the intended parents that may result in the fetus needing to be reduced or removed entirely.

For example, if there is a fetal abnormality that threatens the surrogate’s life, the surrogate and the intended parents are expected to make a difficult decision regarding the pregnancy. Likewise, if the parents know that a fetal abnormality affects the child that would lead to a poor quality of life, they also may make that difficult decision.

There are some not pregnancy-related life-threatening factors that could lead to a termination, as well. Contracts for surrogacy lay out the expected amount of embryos to be transferred and the expected amount of children involved in the birth. Some surrogates are uncomfortable having multiples, and some are okay with twins but not triplets. If a surrogate is carrying more children than expected, the number of embryos may be reduced early in the process.

Termination rights are laid out clearly in surrogacy contracts and factor in what the surrogate is comfortable with when it comes to termination. The current surrogacy contracts also address the need for a surrogate to travel to another more termination-friendly state if the ended arose.

Will IVF Become Illegal?

For a short answer to this question: no.

This issue is incredibly nuanced, however, so delving into the topic a little more we can see where the support lies. When the initial conversation about overturning Roe began, the subject of IVF and privacy rights were addressed. If termination rights were to be affected, where did that place alternate family planning practices? Were embryos legally considered human beings? When it became clear that abortion rights were heavily tied to IVF and assisted pregnancy processes, more people stopped supporting overturning the decision.

The right to reproduction is important to many Americans (64% of Americans did not want to see Roe v. Wade overturned, according to a May 2022 PBS Poll), and the threat of infertility is something that affects everyone. So, it is unlikely that IVF will be made illegal, though the process may be restricted.

What About My Frozen Embryos?

Your frozen embryos are still able to be used, as they are yours. In most states, including some of the more conservative ones, embryos are not considered a living being. This means that your embryos are yours to do with as you please.

In future cases, there may be an argument made for embryo destruction being considered abortion. However, your right to privacy & procreation would likely have to be overturned for this to happen. Regardless, many professionals are preparing to transfer embryos out of states that are not as supportive of IVF at the parents request to avoid this possibility.

How Do We Plan For Termination?

Since Roe V. Wade is now overturned, termination plans will be dependent on state laws. Contracts created in non termination-friendly states may have to make plans for out of state travel to terminate a pregnancy past the limitations of those states.

Despite current law, some states are still not considered very surrogacy friendly, even though surrogacy is not completely illegal or unpracticed in those states. Agencies already work around the lews of these states where applicable. For this reason, we are sure that reproductive lawyers will be able to work through any conditions for termination that are set, as they already work around stipulations from surrogacy unfriendly states.

This can be done, though some states are trying to make it more difficult. However, a reproductive lawyer will know how to move around these new policies and create a surrogacy contract that works for you.

Key Takeaways

The case makes clear that this ruling is singular to abortion. It does not seek to impede on marriage, privacy or other procreative rights in its wake. This hopefully means that in terms of surrogacy, the only issues your lawyer will have to work around are state-specific termination rights.

Now that Roe V. Wade has been overturned, surrogacy specifically may need to change in terms of contractual agreements on termination rights. There may need to be some more finagling depending on the state you are in but the practice will not become illegal, your embryos are not under threat, and overall the practice will remain relatively the same.

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