What if I Change my Mind About Termination After I’m Already Pregnant?
OK, so here’s the scenario: You are a gestational surrogate. In your legal contract, you agreed you would terminate for Down Syndrome. You figured the chances of it happening to you were really small. After all, the intended parents relied upon an egg donor and the embryos were PGT tested and came back normal. “What are the chances the baby would really have Down Syndrome?” you said to yourself. So, you went along with this provision in the contract even though you knew that if your own child was affected by Down Syndrome, you would never terminate. But this wasn’t your child, so you figured it wasn’t your decision to make.
So, after an uneventful embryo transfer, you became pregnant. All was well until the nuchal translucency ultrasound at 12 weeks which showed the baby was at elevated risk of Down Syndrome. The doctors recommended NIPT, non-invasive prenatal testing, which showed that the baby has Down Syndrome. The doctors recommended follow-up with a more reliable amniocentesis to confirm, before considering termination of the pregnancy. You are now avoiding scheduling that amniocentesis. You’ve been feeling baby kicks and just don’t think you could go through with terminating the pregnancy for something like Down Syndrome. If the baby had a fatal defect—like anencephaly (no brain)—of course you could terminate. But an otherwise healthy baby with Down Syndrome, you just can’t do it. “So why even bother with the amnio?” you ask yourself.
Now what?
Well, there’s a moral answer and there’s a legal answer. So, let’s start with the last one.
Can the intended parents force you to undergo an amnio and termination? Probably not. Surrogacy law is very new. So, like many legal issues around surrogacy, this one hasn’t yet been tested in the courts. Surrogacy attorneys around the country are pretty consistent in their answer that the courts won’t force you to get a termination. And probably not an amnio either. But--and this is a big but--the inquiry doesn’t end there.
You have a contractual agreement with the intended parents. You agreed to terminate in this scenario. The intended parents are now asking you to follow the contract. You are refusing. So what happens? Again, these are new legal issues, so it’s hard to give a firm answer. You may be punished financially, such as by losing future compensation. You may even be forced to give back past compensation and reimburse the parents for their actual expenses.
It’s likely the outcome will vary depending on the law of the state you reside in, the law of the state where the child is born, the law of the state where the intended parents reside, and/or the law of the state chosen to govern the contract. So, in my home state of New Hampshire, we know that surrogacy contracts are presumed enforceable by the courts. So, I think it's more likely than not that a New Hampshire court would make you give up the financial benefits of the arrangement. However, the situation in Massachusetts, where there is (currently) no surrogacy law on the books, could well be different and there may be no financial punishment involved. (As an aside, Massachusetts is actively working to get a surrogacy law on the books via the Massachusetts Parentage Act Coalition, so please touch base with them if you are in Massachusetts and can help). It’s definitely one of those (many) gray areas in surrogacy law.
So, let’s say you don’t terminate. Who’s the legal parent of this baby? Can the intended parents just walk away from the arrangement? Again, this is very state law dependent. In New Hampshire, the intended parents are still the legal parents; it’s their baby pretty much no matter what (the only exception would be if you had accidentally gotten pregnant with your own baby). In Massachusetts, I honestly don’t know how the courts would rule. The courts are ALLOWED to issue pre-birth orders but we don’t know if they CAN issue or MUST issue pre-birth orders in cases where the parties are not in agreement about legal parentage. (Again, hopefully, a law change is coming that will change that soon).
Bottom line is that state law will play a huge part in determining what the final result is. So, you need to be having a discussion with your attorney ASAP (and also be prepared to foot your own legal bills here because this is not something intended parents are expected to pay for).
So that’s the legal piece. What about the moral piece?
Morally, you made an agreement. Now is the time to live up to it even if that’s hard for you. I’d be telling you the same thing if the situation were reversed. If the intended parents wanted to continue the pregnancy for a baby with anencephaly, just in case he was one of the few babies to survive, and you didn’t feel it was fair to your own family to continue a pregnancy with a fetus who will die--well the bottom line remains that you need to be prepared to live up to what you promised. So now is a good time to be speaking with a therapist with expertise in surrogacy (and it’s OK to ask the intended parents to pay for this). Talk to your lawyer. Talk to your friends and family. And do what you promised the intended parents you would do because they are counting on it.
The big lesson here is: DON’T AGREE TO ANYTHING IN YOUR CONTRACT THAT YOU ARE NOT PREPARED TO FOLLOW THROUGH ON. I tell surrogates that they need to in their heart know that they can follow through before they sign on that dotted line. Don’t count on “it won’t happen to me.” Don’t be afraid to rematch if your heart isn’t in the same place as the intended parents’ heart in terms of termination. Don’t let your agency pressure you (while we never would do that, I’ve seen it happen with other agencies). And don’t put yourself in this very terribly awful position by not entering into a surrogacy contract you are not sure you can comply with.
Interested in learning more about surrogacy? Chat with one of our experienced surrogates about how the process works with the Bright Futures Families team.