According to the New York Post, “A surrogate mom who refuses to abort
one of the triplets she’s carrying because the father only wants two of
the kids filed a lawsuit Monday claiming that California’s surrogacy
law is unconstitutional.” The headline of the story is “Surrogate carrying triplets sues to stop forced abortion”.
Gestational Surrogacy Case In California Raising Unwarranted Fears
Certainly the title is gripping, intentionally, to draw the reader
into the story and to invoke a sense of outrage. However, the article
does not purport to know the actual facts of the case and certainly does
not report the unanswered questions that intended parents, carriers,
medical professionals and attorneys in this field want presented. There
are thousands of gestational carriers
who deliver in the United States each year. Most of these cases result
in healthy babies that are delivered to their intended parents without
legal incident. Cases such as this one as reported in the Post are
What Can We Learn From This Case?
So what can we learn from the case as reported? First, if you are
interested in being a gestational carrier or a parent via gestational
surrogacy, rest assured this case is not the norm. Second, do your
homework. Ask your prospective carrier her views on abortion,
reduction, and other important medical situations. Make sure
professionals in the field are utilized– social workers, lawyers,
doctors. Don’t skimp on the professional services. This is a child,
your child and doing your best to have this be a good fit is vital. You
must have a meeting of the minds with your carrier and make sure this
meeting of the minds is in writing as well. If you don’t want three
babies, don’t put in three embryos. Sure, embryos can split but you are
much less likely to get triplets if you only put in one or two embryos.
Lastly, do be aware of the legal issues. Make sure you are in a
state with good laws. In California, if the law is followed, the
intended parents in a gestational surrogacy arrangement are the
parents. However, this does not mean you can force a woman to have an
abortion. This is a risk in every gestational surrogacy arrangement.
People can change their minds. If someone says they will have an
abortion and then decides not to have the abortion/reduction, one cannot
force them to have the abortion. This is why proper counseling is
necessary every step of the way. My office has completed thousands of
gestational arrangements and I have never had this problem. Remember,
in life, nothing is guaranteed. But with proper planning, gestational
surrogacy is a wonderful gift for those who need it to build their
We have welcome news for intended parents working with gestational carriers
residing and delivering in Pennsylvania.
On November 23rd, 2015, the Superior Court of Pennsylvania ruled
that a gestational carrier contract can be enforced in Pennsylvania. This is
the first time an appellate court has specifically ruled on the enforce-ability
of a gestational carrier contract in Pennsylvania. This decision now clarifies
the law for the many people who use ART in Pennsylvania to form their families.
In RE: Baby S., click
here to read the full opinion.
We wanted to share with you some recent appearances for
Melissa Brisman, a leader in protecting the rights of Intended Parents and