On June 24, 2022, the Supreme Court released its decision in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to abortion granted by Roe v. Wade in 1973. Without federal protection for abortion, the matter is referred back to the states.
This opened the door for states to ban abortion outright, but it also had an enormous impact on assisted reproduction and surrogacy programs—the practice of a woman carrying the biological child of another individual or couple. Family practitioners and legal professionals who provide counsel to intended parents, carriers and surrogacy and family-planning centers are exercising even more care than usual when approaching these topics’ legal hurdles given that protections vary from state to state.
Laws and Data Trends in Surrogacy and Abortion
Public data on surrogacy births in the U.S. is sparse. The Modern Family Surrogacy Center, based in California, estimates that more than 5,000 births were carried via surrogacy between 2004 and 2008.
But surrogacy agencies were already seeing a decline in carriers beginning in 2020 due to the pandemic, says Jennifer Fairfax, a Maryland-based family lawyer who leads her own firm. Legal developments have only accelerated this trend. “In my conversations with many of the surrogacy programs across the country, they have shared that it’s definitely slower to match, which means there are fewer surrogates,” says Fairfax, who has been recognized by The Best Lawyers in America® for Family Law in Maryland since 2015. “Pre-pandemic, it would take maybe six to nine months for an intended parent to match with a surrogate and move forward with a surrogacy plan. Now it’s 12 to 15 months to match. I’m not sure that the intended-parent population has increased, but that would definitely tell me that the surrogate population has slowed.”
The health and rights of surrogates, though, are unquestionably at risk."
According to the Center for Reproductive Rights located in New York City, 21 states have protected or expanded access to abortion. Three states and Puerto Rico have not yet passed definitive laws, and 26 states are either hostile to abortion (it is accessible but not legally protected) or have outlawed it entirely.
There may be a correlation between surrogacy, abortion laws and legal risk as well. Denver activist group Society of Family Planning released data in October 2022 showing the number of abortions performed monthly in the U.S. at 79,620—some 5,000 fewer than in April.
Angelo Sarno, a partner at Snyder Sarno D’Aniello Maceri da Costa in New Jersey, says the specific language of antiabortion laws will help make their effects clear. The health and rights of surrogates, though, are unquestionably at risk.
“Overly broad statutory language and definitions could, intentionally or not, implicate and even ban certain assisted reproduction technology procedures, including in-vitro fertilization and surrogacy,” says Sarno, who has been recognized by The Best Lawyers in America for Family Law in New Jersey since 2014. “Thus, the irony and tragedy is that while antiabortion laws are intended to promote life, they may have a devastating impact on creating life.”
A New Era for Contract Law
The paperwork involved in surrogacy has long been infamous for consuming months or even years. Following Dobbs, contracts must be pored over more carefully than ever to avoid accidentally triggering the laws of a hostile state.
Kimberly Surratt, founder of Surratt Law in Reno, Nevada, focuses almost exclusively on reproductive law representing surrogates and intended parents; she has advised surrogacy clinics as well. Also licensed in California, Surratt says state guidelines regarding abortion influence the way she drafts surrogacy contracts, as it is common for parents and the carrier to live in different states.
“We see several Arizona surrogates who use fertility clinics in Nevada or collaborate with intended parents who live in Nevada or California,” says Surratt, a past chair of the State Bar of Nevada Family Law Section. “This is because in Arizona, surrogacy contracts are not enforceable.”
The Grand Canyon State was mired in confusion and controversy during the summer of 2022, when an Arizona judge revived a pre-statehood ban on abortion that dates to the mid-1800s. The ruling rendered abortions illegal in the state at all times except when the carrier’s life is at risk. “Because of the interstate nature of our practice, we have to just chronically think about where parties live, the mix of the states and the different laws,” Surratt says. “The goal of surrogacy is not to get a woman pregnant in a location where she’s in jeopardy and can’t make major medical decisions for herself or the embryo that she’s carrying for third-party strangers.”
Thus, the irony and tragedy is that while antiabortion laws are intended to promote life, they may have a devastating impact on creating life.”
Eva N. Juncker is a partner in Cipriani & Werner’s Washington, D.C., metropolitan area offices and co-chair of the firm’s DMV (District of Columbia, Maryland, Virginia) Family Law practice group. Any party involved in family formation in the post-Dobbs era needs representation to navigate the changes, she says: “Portability is an even more critical factor now. As the surrogate moves or intended parents move or relocate, we get a whole lot more patchwork in the way of states’-rights applications on family formation and dissolution. It’s now become like a 4D chess board, and it’s incredibly complicated.”
How new laws will affect embryo donations, for example, is one factor on Juncker and her firm’s risk radar. “Public policy provisions are often in these contracts, whether it’s how we’re going to address custody of the embryos or the transfer of them in the surrogacy agreements,” Juncker says. “These contracts are enforceable as long as they’re not void as against public policy of the jurisdiction where they’re created. Elections will impact that. Public policy is set by case law, but it’s also set by the laws of each of the 50 states. This will potentially change a lot over the next six years.”
The Future of Reproductive Rights and Family Planning
Navigating women’s health and reproductive rights in the U.S. has been likened to a labyrinth by many in the legal profession. Lawyers and firms need resources to provide the most current counsel to clients on either side of surrogacy and family planning.
The Academy of Adoption and Assisted Reproduction Attorneys (AAAA) is a nationwide organization dedicated to providing ethical practice of adoption and assisted-reproduction law. AAAA Assisted Reproduction Technology (ART) director Nidhi Desai says the myriad legal challenges presented in 2022 kept the academy busy offering guidance online and at events. They also forced AAAA to consider the new and varied ways family planning legislation might expand.
“After Dobbs, we provided resources and town halls for members to talk about some of the problematic provisions and agreements, and how to start to deal with them,” says Desai, a partner at Desai & Miller in Chicago. “We had a midyear conference where we spent an entire day on various aspects of Dobbs. There are some things we can’t fix, but we can try to make sure that everyone is educated to the extent possible. For example, knowing that gestational surrogates in some states may have an ectopic pregnancy and it may take more time to receive health care because the decisions have made stakeholders afraid of being arrested or violating felonies if the fetus dies in utero. Those are the types of issues that are really scary right now.”
Regardless of one’s personal or political affiliation, the best way for lawyers to help clarify how laws will affect surrogacy and other forms of family planning, Surratt notes, is to volunteer at state legislatures. A past president of the Nevada Justice Association, Surratt contributed to bills including Nevada Domestic Partnerships, the Uniform Collaborative Law Act and rewrites of many surrogacy statutes. “Exceptions are needed for medical emergencies,” she says. “That alone can be beneficial. But because of the extreme positioning, nothing’s falling in the middle. If lawyers want change, they will have to roll up their sleeves and get involved.”
Time invested now, Surratt says, will present more options for surrogates and intended parents, and it has the potential to strengthen the medical profession more broadly.
“There aren’t enough professional voices. The medical lobby and doctors are even angrier than women’s-rights lobbyists and advocates, because they can’t practice medicine effectively,” she adds. “They see a woman but may have to wait until she is just sick enough before they can do something to help her, possibly risking her life. The ectopic pregnancy conversation alone is difficult. A pregnancy cannot survive in a tube. It needs to be in the uterus, and any carrier will be at risk if laws prevent her from healthy options. Doctors’ ethics are on the line, and many who want to do the right thing are thinking ‘By law, my hands are tied, and I can’t practice medicine the way I need.’”
Justin Smulison is a professional writer who regularly contributes to Best Lawyers. He was previously a reporter for the New York Law Journal and also led content and production for the Custom Projects Group at ALM Media. In addition to his various credited and uncredited writing projects, he has developed global audiences hosting and producing podcasts and audio interviews for professional organizations and music sites. JustinSmulison.contently.com
