Legal disputes between surrogates and genetic parents don’t generally make it up to the U.S. Supreme Court, but that’s what happened in one recent case involving a California couple and their surrogate. The case, which SCOTUS declined to weigh in on, is example of what complications can ensue if the fetus is found to be suffering a serious medical issue.
The surrogate and the genetic parents dispute whether they told her to terminate the pregnancy after doctors discovered a congenital heart defect that could be fatal if not properly treated. Their surrogacy contract included a clause stating that the pregnancy could be terminated if a “fetal abnormality” was found. She claimed they tried to invoke that clause, but she refused to have an abortion and sought custody of the baby.
Courts sided with the parents
Both a California court and a court in Texas (where she moved and where abortion is largely illegal) denied the surrogate’s request for custody. The surrogate argued that the genetic parents might not give the baby the medical care he needed. They said they had arranged care for him and in turn claimed she was “unstable” and “making us run from doctor to doctor, state to state with our baby.” The surrogate also unsuccessfully took her case to Alaska, where she was from.
Even though the surrogate got the support of Texas Attorney General Ken Paxton, the Texas Supreme Court sided with the parents, ruling, “Sustaining the life of the medically fragile child is the paramount concern in this time-sensitive matter.”
The importance of thoroughly addressing the potential for medical complications
The potential development of a serious fetal abnormality is always a possibility for those involved in a surrogacy arrangement. Of course, agreeing to terminate a pregnancy if that occurs and actually doing it are two very different things. Ultimately, a surrogate can’t be forced to terminate a pregnancy. However, they can face legal and financial consequences for violating the contract.
It’s crucial to plan for various types of medical complications, no matter how unpleasant they are to consider. It’s also important to stipulate the location of a birth and where any legal matters will be heard. Seeking experienced legal guidance is necessary for intended parents as a result.
It’s a lot to think about for those on both sides of the agreement. Each should have their own experienced legal representative to provide guidance and protect their rights and those of any children accordingly.