Gestational surrogacy contracts have been in the news again recently as a gestational surrogate reports that the intended father, having discovered that she is expecting triplets, is demanding that she undergo selective reduction to abort one of the fetuses. Situations such as these, while often not reported, are not necessarily uncommon. In 2013, a gestational carrier was offered $10,000 to abort when a second trimester ultrasound discovered congenital heart and brain abnormalities. Despite a well-established Constitutional right to privacy that includes a pregnant woman’s right to procure – or refuse – an abortion, surrogacy contracts routinely include provisions that not only prohibit a surrogate from having an abortion unless there is a medical need, but also give the intended parents sole discretion to determine whether the surrogate should abort where there is evidence of a physical abnormality or other issue. Such provisions have not been tested in court, but would almost certainly be unenforceable based on the surrogate’s Constitutionally-protected right to reproductive autonomy.
In India, where there is an estimated $400 million surrogate tourism industry, women agree to be surrogates in exchange for $5,000-7,000, which is far more than they could make otherwise. In many clinics, surrogates live in dormitories for the duration of the pregnancy and their food and medical care is provided by the clinic. There are also reports that some clinics have policies against pregnancies of 3 or more fetuses – meaning that selective reduction may occur as a matter of course to reduce the number of fetuses to 2 or 1. If this is in fact happening, are the surrogates (or even the intended parents) aware of what is happening? Are they given a voice in the medical care and treatments they receive? Or are the decisions made by the intended parents or the clinic, and simply imposed on the surrogate?