Can Parents Make Their Surrogate Abort a Fetus?

Surrogate mother Brittneyrose Torres never imagined the biological parents would order her to get an abortion. But they did, and she's fighting it.

Brette Sember February 05, 2016
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When Brittneyrose Torres agreed to be a surrogate and carry a pregnancy for a couple, she never imagined the biological parents would order her to get an abortion. But when the pregnancy was revealed to be three babies (a set of male twins and a single female), the parents asked her to abort just the female because they were concerned about an increased risk of disabilities with triplets.

Torres refused to abort any of the fetuses and is now fighting, with the help of The Center for Bioethics and Culture Network, to carry all three babies to term and adopt the girl as her own, a solution the biological parents oppose.

Similar Surrogate Cases

Torres isn’t the only surrogate to deal with a situation like this. Californian Melissa Cook is currently carrying a triplet pregnancy for a Georgia man, who has also demanded that she abort one of the triplets. Cook refuses to comply and the father is threatening to not pay her, as well as to hold her liable for all future expenses for the children. And in a 2013 case that transpired in Connecticut, another surrogate refused to abort a fetus with abnormalities. The child was born and the intended parents gave up their rights to the child, who was adopted by another family.

Contract is King

Both Torres and Cook signed contracts paying them over $30,000 to carry the pregnancies to term. Moreover, both contracts included escalation clauses, increasing the payment amount with the number of fetuses involved, making it clear to the surrogates that there could be more than one baby involved.

The contracts also included selective reduction clauses that allow the biological parents the choice to reduce the number of fetuses in the pregnancy. The contracts are enforceable under California law—if a surrogate fails to comply, the payment she is entitled to under the contract can be withheld. Parents can also sue a surrogate for the expenses associated with raising a child they chose to abort and for breach of contract, as well as damages, such as emotional distress.

To date, no court has ever ordered a surrogate to abort a pregnancy, so it is unlikely that the intended parents will obtain a court order to abort one of the fetuses in these cases. However, if the surrogate in either case refuses to comply with her clients’ wishes, after the babies are delivered, the court will have to determine legal parentage and financial penalties. Most likely, the concerned parties will reach a settlement, since in both cases the intended parents want some of the fetuses to continue developing.

Surrogacy Types Impact Cases

All of these cases involved gestational surrogacy contracts. In gestational surrogacy, the surrogate is not biologically related to the baby (her eggs are not used and an embryo is implanted in her uterus). Traditional surrogacy cases involve surrogates who are inseminated and whose eggs are used. Those cases tend to be more complex and more difficult to navigate legally because the surrogate has parental rights.

These kind of disputes are why some states ban surrogacy and will not enforce surrogacy contracts. As the courts in an increasing number of states debate commercial surrogacy and the complicated issues that can erupt around them, more states may soon follow suit.

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Brette Sember

Brette Sember is a former attorney and author of more than 40 books, including The Divorce Organizer & Planner, The Complete Divorce, and How to Parent with Your Ex. She writes often about law, parenting, food, travel, health, and more. She blogs at PuttingItAllOnTheTable.com, and also writes about legal issues in everyday life on the Avvo NakedLaw blog. Avvo provides free answers from lawyers, client reviews, and detailed profiles for 97 percent of all attorneys in the U.S.; follow them on Twitter and Facebook.


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