Kira Hackett

What is Surrogacy? Some couples are unable to have families on their own and need to go another route. Options for those couples include things such as adoption or surrogacy.  Surrogates are women who carry and deliver a child for a couple who want to become parents.[1] Surrogates are impregnated through In Vitro Fertilization (IVF), so they typically are not genetically related to the child.[2] They are impregnated using fertilized eggs that are typically related to the Intended Parents, although sometimes they will be impregnated using eggs or sperm from a donor.[3] The Intended Parents and the Surrogate are meticulously paired to make sure they will be a good fit and have the same values.[4] This helps ensure a smooth process where there are no surprises, and no one finds themselves in a situation that they are uncomfortable with.

Often, this journey is very happy and very exciting. One party is a woman who is helping a family grow and the other parties are going to benefit and be given the amazing gift of a new child in their family. The happiness that comes from Surrogacies is so heartwarming. What could possibly go wrong?

On June 24, 2022, the Supreme Court of the United States overturned a landmark case: Roe v. Wade.[5] This case protected the right to abortion, and its overturning means that the right to abortion has been left up to the states and their elected representatives.[6] This has big implications for the kind of care that women are potentially able to access if the Surrogate lives in one of those twenty states.

Why does this matter for Surrogates? One would think that the sole purpose of having a Surrogate is to bring a baby into the world, and therefore, there would be no need for access to abortions. However, just like a typical pregnancy, there may be times when termination is the necessary option. This is an option that both the Surrogate and the Intended Parents don’t want to use, but there are provisions for it within the contracts in case the worst happens.

There are many reasons why termination may be the necessary option for a Surrogate and the Intended Parents. Perhaps the pregnancy is now endangering the life of the Surrogate, the child’s life is in danger, or something else happened to the fetus.[8] Maybe the Surrogate is pregnant with triplets, and the Intended Parents have agreed to use selective reduction[9] as part of their contract to give each of the children their best chance at survival.[10] These kinds of situations are discussed during the contract negotiation, which happens before implantation of the fertilized eggs, because both the Intended Parents and the Surrogate need to be on the same page about what they are comfortable with, and their plan for any adverse issues that might arise during the Surrogacy journey.[11] These discussions are crucial as part of the matching and contract negotiation processes in order to ensure that the parties do not run into any issues during the actual pregnancy. The Intended Parents should be able to support the Surrogate in her needs during pregnancy and the Surrogate should be in agreement with what the Intended Parents want out of their journey. This is why no medical procedures happen before the contract has been signed by everyone, and the Surrogate has to talk with a lawyer before signing the contract.

What can Surrogates and Intended Parents do to ensure that they will not be impacted by the overturning of Roe v. Wade? Along with discussing what they would do in circumstances that may require or strongly indicate that termination is necessary, the Intended Parents and Surrogate need to formulate a plan if the Surrogate lives in a state where abortion access is banned.[12] If this is the case, the Surrogate and the Intended Parents need to have discussed the possibility of the need to travel to another state to secure what could be life-saving care.[13] This can be a pricey endeavor because there may be flight or rental car costs, potential medical costs, hotel, and meals. The parties can also have the embryos tested prior to implantation to try to ensure that there will be no genetic conditions that might lead to abortion access being necessary.[14]

What could happen if these implications are not kept in mind? Many states have penalties such as fines or even jail time for women who try to seek abortion care.[15] This could leave the agencies or even the Intended Parents open to liability for “aiding and abetting” the Surrogate in her accessing medical care.[16] This is a very scary prospect, considering that many women who are seeking care are in desperate need for the care and may not have any other option. It is safe to assume that none of the women who sign up for being a Surrogate plan for needing abortion care when they are carrying another person’s child.

The overturning of Roe v. Wade has changed a lot both in the country and in the area of Surrogacy law. Because of these changes, matches will need to be made very carefully, women will have to think even harder about their decision to become a Surrogate, and agencies will need to be very careful in their advising of Surrogates or Intended Parents depending on where the Surrogate may be living. Overall, there are extra steps to take and more things to think about when becoming a Surrogate in this post-Dobbs wo

[1] Yale Medicine, Surrogacy, https://www.yalemedicine.org/conditions/gestational-surrogacy (last visited Feb. 26, 2025).

[2] Id.

[3] Id.

[4] Id.; Southern Surrogacy, LLC, Top Ten things to think about with Surrogacy, now that Roe v. Wade is overturned, https://www.southernsurrogacy.com/top-ten-things-to-think-about-with-surrogacy-now-that-roe-vs-wade-is-overturned/ (last visited Feb. 26, 2025).

[5] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231 (2022).

[6] Roe v. Wade, 410 U.S. 113, 164-5 (1973); Dobbs, 597 U.S. at 232.

[7] Emma Batha, Where do US states stand or abortion bans as new Trump era dawns?, Context (Nov. 8, 2023, 5:34 PM, updated Jan. 20, 2025), https://www.context.news/money-power-people/roe-v-wade-which-us-states-are-banning-abortion (the number of states banning or limiting abortion is accurate as of the review of this post in March 2025).

[8] David Dodge, The Surrogacy Industry Braces for a Post-Roe World, N.Y. Times (Aug. 24, 2022), https://www.nytimes.com/2022/08/23/well/family/surrogacy-pregnancy-roe-abortion.html.

[9] Multifetal Pregnancy Reduction, ACOG, https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2017/09/multifetal-pregnancy-reduction (last visited Mar. 30, 2025).

[10] Simple Surrogacy, Why Is Surrogacy Affected By Roe v. Wade?, (July 2, 2022), https://simplesurrogacy.com/news/why-is-surrogacy-affected-by-roe-v-wade/.

[11] Dodge, supra note 8.

[12] Southern Surrogacy, supra note 4.

[13] Id.

[14] Id.

[15] Batha, supra note 7.

[16] Dodge, supra note 9.