No one knows the ultimate Supreme Court decision, though it’s reasonable to assume Roe V. Wade has a strong chance of being repealed. What might this mean for surrogacy if this does become the reality in the United States?
>Many Intended Parents Will Only Choose Surrogates in Abortion-Friendly States. This is already happening in preparation for what the Supreme Court might do. IPs are worried about the health of surrogates and the ethics of asking someone to be their surrogate knowing they may need abortion at any stage in the pregnancy to protect their own life and health. This goes beyond an Intended Parent who might choose termination because of serious issues with a fetus itself.
>Many Surrogates will choose not be Surrogates in Abortion-Restrictive or Prohibited States. Surrogates know a host of issues can happen during the gestational period. Surrogates want (need) to be able to access abortion as healthcare if there are complications. Surrogates are not willing to sacrifice their own lives for a fetus and nor should they be put in the position to do so. The problem with pointing to exceptions for the “life and health” of the pregnant person is that this can often be a subjective call. Many doctors might be afraid to make such a call for fear of liability under new laws. Instead of a doctor and the person who is pregnant making this important decision together with a thorough understanding of the situation and risks, it might be a doctor who is too afraid to save a woman’s life for fear it opens them up to criminal liability deciding if a pregnant woman lives or dies.
There are also gray areas in the many state-by-state restrictions currently on the table. Right now (and presumably also in the future), anyone seeking abortions who has the means to do so can travel out of state. The bounty/penalty for assisting women with funds to travel out of state likely doesn’t apply to non-residents of that state, though lawyers are still looking at all possible outcomes of these new and proposed laws. International IPs would also not be subject to US laws in terms of funding travel for surrogates who need abortion as healthcare. Surrogates may choose to only work with Intended Parents who are not residents of an abortion-restrictive state if it protects their IPs from liability.
Budgeting for potential international and domestic travel may be a norm e.g. Canada currently welcomes Americans seeking medical services, including abortions. Many US states are also looking at becoming “abortion sanctuaries”, including providing funding to help women in abortion-prohibited states receive essential reproductive healthcare in their state.
Surrogacy agencies based in abortion-restricted or prohibited states may find they have no more intended parents or surrogates interested in their services as a business located in a restricted/prohibited state given their presumed status as a potential financial facilitator of an abortion. Many surrogates are already not signing contracts with these agencies.
The longer term question on what restricting or prohibiting abortion means for people undergoing IVF generally remains. Depending on the ultimate outcomes, you may see IVF prohibited or restricted in certain states with residents turning to clinics in assisted-reproductive friendly states instead.
If you are a surrogate or intended parent seeking potential surrogacy matches for an independent journey without a surrogacy agency, start here!
