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When Things Go Wrong: Pregnancy Termination in Surrogacy

by Shelley M. Tarnoff

     After years of infertility treatments and praying for a positive pregnancy test, it is never easy to hear that you will not be able to carry a child on your own. It can take years to come to grips with the fact that you will miss the experience of pregnancy and that you will have to rely on the services of a surrogate to have the family you always wanted. After saving enough money, researching medical clinics and agencies, and meeting the woman who has offered to help you, it is time to bring in the lawyers to work out the details of a surrogacy agreement. Caught up in the magic of creating a life together, therapeutic abortion and selective reduction are not pleasant subjects to talk about. However, setting forth the terms and conditions of pregnancy termination is one of the most crucial aspects of contract negotiations and can help to avoid serious misunderstandings later on.

     The 1973 U.S. Supreme Court case Roe v. Wade upheld a woman’s right to abortion (under certain circumstances) based upon her constitutional right of privacy. Accordingly, it is the surrogate who makes the ultimate decision regarding therapeutic abortion and selective reduction, regardless of the terms of the surrogacy agreement. If an amniocentesis reveals a serious fetal abnormality, there is nothing the intended parents can do to compel the surrogate to undergo an abortion. Their remedy at law is limited to a suit for breach of contract, with damages including, but not limited to, reimbursement of medical and legal expenses and additional costs associated with raising a handicapped child. Because of this legal framework, it is essential that each party undergo a thorough psychological evaluation and review of personal moral, ethical and religious considerations regarding abortion to ensure that the viewpoints of the intended parents and surrogate are compatible.

     It is common for the surrogate agreement to provide that the decision to abort will be left to the discretion of the attending physician if continuation of the pregnancy presents imminent harm to the surrogate’s health. Intended Parents may request that surrogate undergo a therapeutic abortion upon the diagnosis of a significant physical and/or mental abnormality. It is important to avoid ambiguous contract language such as conditioning therapeutic abortion upon “abnormalities that would significantly impair the child’s quality of life” in favor of more specific provisions such as “abnormalities diagnosed by genetic or other testing”. Surrogates may request that a therapeutic abortion not be performed for the purpose of sex selection. The parties may agree to a selective reduction procedure in the event more than two fetuses are developing. Fortunately, with the emerging trend of transferring no more than two blastocyst embryos, the incidence of selective reduction is becoming less frequent.

     If the surrogate undergoes a therapeutic abortion or spontaneous abortion, according to the terms of the agreement, she is usually paid a pro rata portion of her fee, calculated by multiplying her total fee by a fraction, the numerator of which is the number of days of pregnancy and the denominator of which is the normal term of pregnancy. Additionally, a fee of $500-$1,500 is often paid to the surrogate for undergoing a therapeutic abortion, selective reduction, amniocentesis or other invasive procedure to compensate her for associated pain and suffering. In the event of infant death, the intended parents should agree to take all actions necessary to have their names listed on the infant’s death certificate and to assume all cremation and burial expenses.

     Pregnancy loss is an extremely difficult experience for all parties. In her search to find an explanation for the miscarriage, a surrogate may feel guilty for “not resting enough” or “not eating well”. In all likelihood, there is nothing she could have done to prevent the loss. Distraught over the huge emotional and financial toll, the intended parents may lash out and blame the surrogate or the physician. A trained mental health professional can help guide the parties through the grief of pregnancy loss and work towards resolution. With the physician’s approval, the surrogate may be willing to undergo a repeat cycle after a few month’s of rest.

     As the parties proceed with contract negotiations, it is important to acknowledge the purpose and limitations of a legal document. The agreement sets forth the rights and responsibilities of the parties, but what holds the relationship between the surrogate and intended parents together is the bond of trust. This trust is formed over time with honest communication and mutual respect. The intended parents trust the surrogate to do her best to provide a healthy in utero environment for their child. The surrogate trusts the intended parents to love and accept any child born as their own. With a foundation of integrity and goodwill, the parties can work together towards their shared goal - producing a healthy child.



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