Responsible Surrogacy

Information regarding the ethical aspects of the process

There are different circumstances in which the pregnancy should be terminated due to medical reasons that might endanger the fetus or the surrogate. There are cases where the recommendation is unequivocal – while other cases require complex decisions in light of the recommendations of physicians. In most (if not all) countries where surrogacy is held, the surrogate can decide herself on termination given medical problems, but some complexities should be considered in this context. In the United States, there was a case that brought up many of the problems associated with termination of pregnancy: After medical tests, doctors recommended to terminate the pregnancy. The decision was made by the intended parents – but the surrogate refused to abort the fetus, because she ideologically opposed abortions. Eventually, the surrogate moved to another US state, in which the surrogate is defined as the child’s legal guardian – and there gave birth to the child and raised him.

Surrogacy agreements often refer to the case of termination. In some of them, terminations is completely banned except in cases where there is a medical recommendation after consultations with the intended parents, despite the fact that this prohibition contradicts the local law in some cases and the international perspective regarding women’s autonomy over their bodies. In some cases, the relevant medical information was not transferred to the surrogate until a very late stage, prior to the abortion. We recommend referring to termination in the surrogacy agreement and to the decision making progress in that respect, considering cases in which there is a medical recommendation for termination. Additionally, we suggest confirming that the surrogate is regularly updated with all the relevant information in the event of a medical problem.

The issue of termination of pregnancy becomes even more difficult if the surrogate decides to do it with no medical background. In most countries and states, she does have the right to do so, at least in the early stages of pregnancy. Some agreements state in this case that the surrogate will not only lose her entitlement for the agreed upon compensation, but will also be fined an additional sum, in a manner that might affect her autonomy over her body disproportionately. There is no doubt that the issue of termination with no medical background is a sensitive matter, but it can be assumed that the interest of the surrogate, in part for economic reasons, is to have the baby and not stop the pregnancy.

Note: Besides the complicated case of termination for medical reasons, there is another case that might raise complex issues: the birth of a child with birth defects. It should be made clear that this difficult situation should not affect in any way the compensation transferred to the surrogate.

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