Whether the U.S. Constitution Permits a Government to Prohibit Abortion in Commercial Surrogacy Is a Question of First Impression

Whether the U.S. Constitution permits a government to prohibit abortion in the context of commercial surrogacy is a question of first impression.  I have found no court decision directly addressing this issue under either the federal constitution or a state constitution.  This finding is not surprising as I have found no instance of the federal government or any state government imposing a prohibition on abortion in the context of commercial surrogacy.  Accordingly, if such a prohibition were imposed and then challenged in court under the U.S. Constitution, a court would have to decide the question by determining how abortion precedents decided in other contexts, how the rationale underlying those precedents affects a prohibition, and how any other sources of law might apply or not apply in this context.

Two state court cases address the issue of abortion in the context of surrogacy contracts or other situations involving artificial reproduction.  See T.M.H v. D.M.T., 79 So.3d 787, 799 (Fla. 5th DCA 2011), aff’d in part, disapproved in part, 129 So.3d 320 (Fla. 2013); Matter of Baby M., 217 N.J. Super. 313, 375 (App. Div. 1987), aff’d in part, rev’d in part, 109 N.J. 396, 411 (1988).  Neither of these cases, however, addresses the question of whether, under either the federal constitution or the applicable state constitution, the government may prohibit abortion in the context of commercial surrogacy.  Both opinions merely assume the existence of the abortion right and refer to that right while discussing issues arising from or involving surrogacy, or other forms of artificial reproduction.

In the first case, T.M.H v. D.M.T., a Florida appellate court explained that, in a case involving artificial reproduction where one woman provided the egg and one woman carried the child, only the woman carrying the child has the right to decide whether to abort, stating “[i]t is well established that a woman has a right to terminate her pregnancy without the consent of the genetic father, for example.” 79 So.3d at 799.

In the second case, Matter of Baby M., the Superior Court of New Jersey attempted to formulate a rule governing surrogacy contracts, declaring them enforceable only after the time of conception.  217 N.J. Super. at 375.  It added an exception to this rule, however, stating “[a]fter conception, only the surrogate shall have the right, to the exclusion of the sperm donor, to decide whether to abort the fetus.” Id.  The court cited Roe v. Wade, 410 U.S. 113 (1973), and declared that the clause of the surrogate agreement prohibiting abortion except as allowed by the male promisor was void and unenforceable.  Matter of Baby M., 217 N.J. Super. at 375.

Neither of these cases presented the issue of whether a government may prohibit abortion in the context of commercial surrogacy.  As stated above, I have found no instance of the federal government or any state government imposing a prohibition on abortion in the context of commercial surrogacy, and no such prohibition was at issue in these cases.  At most, these cases stand for the proposition that whatever constitutional abortion right exists may not be abrogated by a surrogacy contract.

There are other reasons not to overweigh these cases.  In Matter of Baby M., the surrogate had already given birth prior to the start of litigation, rendering the clause in the contract allowing only the male sperm donor to decide to abort irrelevant.  Id. at 326.  Moreover, whereas the court fashioned its answer as an exception to its broad ruling that after conception, surrogacy contracts are enforceable, id. at 400, the Supreme Court of New Jersey ruled that the whole contract was void.  See Matter of Baby M, 109 N.J. 396, 411 (1988).  Similarly, the T.M.H reference to abortion set forth above was made merely in response to a point raised by the dissent, and the core issue in that case was whether the statute in question, requiring the egg donor to relinquish all her maternal rights, was unconstitutional.  79 So.3d at 793.  The Supreme Court of Florida mentions nothing of the dictum regarding abortion in its review of the decision.  See D.M.T v. T.M.H, 129 So.3d 320 (Fla. 2013).

In addition to these two cases, two other state court cases touch on whether a surrogacy contract between private parties could limit the surrogate’s ability to abort the fetus she is carrying.  In In re Marriage of Moschetta a California appellate court simply mentions the host of “thorny legal problems” that would arise if a party could enforce a surrogacy contract prior to the child’s birth.  25 Cal. App. 4th 1218, 1235 (1994).  It included a footnote stating, “What if a surrogate mother took drugs or alcohol during her pregnancy in violation of her contract? Or wanted an abortion? Could the contract be enforced by court order and subsequent contempt?” Id. n. 23.  Similarly, the Supreme Court of California in Johnson v. Calvert explained language in the contract stating that “‘[a]ll parties understand that a pregnant woman has the absolute right to abort or not abort any fetus she is carrying,’” and “‘[a]ny promise to the contrary is unenforceable’” meant that the court did not need to “determine the validity of a surrogacy contract purporting to deprive the gestator of her freedom to terminate the pregnancy.” 5 Cal. 4th 84, 97 (1993).  Neither of these cases ruled on the validity of a contract between private parties that restricted whatever abortion right exists, much less addressed the question of whether a government may prohibit or restrict abortion in the context of commercial surrogacy.

I have found no instance of the federal government or any state government imposing a prohibition on abortion in the context of commercial surrogacy, and no court decision directly addressing this issue under either the federal constitution or a state constitution.  It is a question of first impression whether the U.S. Constitution permits a government to prohibit abortion in the context of commercial surrogacy.  A court, if faced with this question, would have to decide it by determining how abortion precedents decided in other contexts, how the rationale underlying those precedents affects a prohibition, and how any other sources of law might apply or not apply in this context.

Daniel Grabowski is a law student who served as 2016 summer legal intern with the Charlotte Lozier Institute.