When abortion and surrogacy law collide, contracts can’t answer the hardest questions

Surrogacy is an arrangement where a person, called the surrogate, carries a pregnancy for intended parents who cannot or choose not to carry it themselves. These arrangements have existed for thousands of years, with modern legal contracts dating back about 50 years. Typical surrogacy contracts cover topics like parental rights, medical instructions (including the possibility of abortion), health insurance, and payment for expenses. Both sides usually have their own lawyers to negotiate these contracts. In the U.S., thousands of babies are born through surrogacy each year, with costs often exceeding $200,000 when agencies are involved. These contracts are generally honored, but they cannot always predict or resolve conflicts that arise during the process.

In 2026, surrogate McKenna West refused the intended parents’ request to abort a fetus diagnosed with a serious heart condition, despite her contract stating she would terminate the pregnancy if requested. West moved from Alaska to Texas, where she believed the baby could receive necessary medical care after birth, as Texas bans abortion in almost all cases. The intended parents, who lived in California, obtained a court order before the birth declaring they would become the legal parents. The Texas attorney general intervened, requiring lifesaving care for the baby. West sought custody but ultimately dropped her claims if the couple agreed to the baby’s treatment. The Texas courts upheld the intended parents’ rights, and the U.S. Supreme Court declined to intervene, leaving West with no rights to the baby.

Similar conflicts have occurred in the past. In 2012, surrogate Crystal Kelley refused to abort a fetus with severe abnormalities after the intended parents requested it. She moved from Connecticut to Michigan, where she had parental rights, and placed the baby for adoption. The girl later died at age 8. In the 1988 Baby M case, a surrogate who was also the genetic mother insisted on keeping the baby despite a contract to relinquish parental rights. The New Jersey Supreme Court voided the contract but awarded custody to the father while granting the surrogate visitation rights. These cases highlight how surrogacy agreements can fail to resolve disputes over medical decisions.

Surrogacy laws vary widely by state, creating a patchwork of rules that can lead to conflicts. Some states, like California and Texas, are considered surrogacy-friendly, meaning contracts are relatively easy to enforce, but they differ sharply on abortion laws. Surrogacy agreements may include clauses requiring the surrogate to follow specific medical instructions, such as dietary restrictions or travel limitations. They may also specify conditions for abortion or selective termination if the fetus has abnormalities. However, these clauses are rarely tested in court, and their enforceability remains unclear, especially after the 2022 Dobbs decision, which removed federal abortion protections.

Even before Dobbs, courts sometimes ordered pregnant people to undergo medical procedures against their will, such as C-sections, if it was deemed necessary for the fetus’s well-being. This shows that bodily autonomy for pregnant people has never been absolute. After Dobbs, the intersection of surrogacy and abortion has become more complex. In 2025, a Florida judge questioned the constitutionality of surrogacy based on fetal personhood—the idea that an unborn fetus has the same legal rights as a born human. The Florida attorney general argued that surrogacy contracts violated the 13th Amendment’s ban on slavery by treating children as commodities. Some conservative groups have since pushed to limit or ban surrogacy in states with strong fetal personhood laws.