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

Surrogate McKenna West refused the intended parents' request to terminate a pregnancy after a fetal heart diagnosis, despite a contract clause requiring termination 'if the Intended Parents request' it. West relocated from Alaska to Texas, which bans abortion in nearly all circumstances, while the California-based intended parents secured a court order establishing legal parenthood before birth.

Texas's attorney general separately obtained a court order compelling lifesaving surgery for the baby after the intended parents reportedly refused to consent to it. Texas courts upheld the intended parents' rights, and the Supreme Court declined to intervene, leaving West without custody or information rights.

The article places this alongside earlier cases, including the 2012 Crystal Kelley surrogacy dispute and the 1988 Baby M case, where courts similarly struggled to enforce contractual abortion provisions against a surrogate's bodily autonomy. It notes that since the 2022 Dobbs decision, state-by-state abortion variation has made such contract clauses increasingly unenforceable, with Florida officials even questioning surrogacy's legality on fetal-personhood and 13th Amendment grounds.

The full dispatch is available from the source below.