17 May 2022 Overturn of Roe v. Wade Could Make Some States Hostile to Surrogacy

The media frenzy and public backlash we were all expecting later this summer came early.

An unprecedented series of leaks from the U.S. Supreme Court, including the leak of a draft opinion overturning women’s rights to abortion, SCOTUSBlog reports, has convinced most observers that the Court will overturn the 1973 landmark decision in Roe v. Wade when it rules on the Mississippi abortion ban case,Dobbs v. Jackson Women's Health Organization, expected in June.

On April 26, the Wall Street Journal published an editorial saying that five justices are prepared to uphold the Mississippi ban. Passed in 2018 and immediately challenged in court, the Mississippi law would ban abortions after 15 weeks, with narrow exceptions for medical emergencies or severe fetal abnormality, none for cases of rape or incest.

Initially, the Supreme Court declined to hear the case, but with the appointment of two additional conservative judges—Brett Kavanaugh in 2018 and Amy Coney Barrett in late 2021—reversed that earlier decision and heard oral arguments on December 1, 2021. Based on the tenor of the justices’ questions and responses, activists and court-watchers have predicted the Court would, at a minimum, uphold the Mississippi law’s 15-week restriction, but many hoped it would do so without overturning Roe entirely. With Politico’s publication of the leaked opinion draft, it appears a majority of justices are prepared to overturn Roe, sending the regulation of abortion back to the individual states.

Anti-Abortion States May Force Surrogates to Travel for Care

So what does this mean for the thousands of intended parents who turn to IVF and surrogacy, often after exhausting all other means of creating a family?

One thing certain to follow the overturning of Roe v. Wade is lots of litigation, likely for years to come. Although the Supreme Court confirmed its validity, the leaked draft is not the final, official opinion of the Court and is likely to undergo changes before the formal decision is issued, probably in late June.

What appears to be in the tea leaves is that the Supreme Court will say that abortion is not a right of privacy explicitly provided for in the U.S. Constitution and, therefore, neither the Supreme Court or any federal court or federal government office, federal legislation or the White House should have jurisdiction over whether abortion should be allowed (or not).

If that is the way the Court rules, the next logical step would be to say that maybe NO government (state or federal) should tell a woman what she can and cannot do with her body. However, I assume this decision will instead result in the matter being left to each of the states to decide how it wants to handle it. As reported by The New York Times, if Roe is overturned, 28 states are expected to severely restrict or ban abortion entirely; another 22 states would likely continue to protect women’s right to choose.

In surrogacy arrangements, intended parents, the surrogate and her husband and family agree in a written contract what measures will be taken in specific circumstances. For example, the parties might agree that, if the surrogate became pregnant with multiple embryos, the number would or could be reduced. In the case of fetal abnormality or disease, the parties might agree to terminate the pregnancy. At all times, the surrogate has the sole right to determine whether or not to continue the pregnancy or what medical procedures will be used.

Under those circumstances, should Roe be overturned, a surrogate who lived in a state where abortion was banned would be forced to travel to another state where the procedure is allowed. A surrogate has a constitutional right to travel and a right to seek healthcare wherever she wants.

Women Have Constitutional Right to Travel for Medical Care

In other words, it is not illegal for a surrogate to travel to another state where abortion would be permitted. Some state legislators already have advanced plans to prevent women from traveling from a state where abortion is banned to obtain an abortion in another state. I believe this is legislative overreach and that ultimately such attempts to restrict women’s rights to travel to seek medical attention will be deemed unconstitutional.

Still, Roe’s overturn may result in a decline in surrogacy in anti-abortion states and an increased demand for surrogates in pro-choice states.

As disheartening as the attack on women’s reproductive rights is, I am confident that, over time, the right and the desire to procreate and build families will prevail over temporary setbacks such as this one. Even though Justice Samuel Alito's onerous draft opinion lazily and sloppily attempts to paste a Bandaid across the gaping hole he has busted in legal precedent, by claiming his decision impacts nothing else but abortion, conservative, base-baiting legislators and anti-choice activists have already begun lining up their next targets—including the right to have information about and use contraceptives, the right of consenting adults to privacy in their own bedrooms. Overturning Roe on the premise that individuals' right to privacy is not enshrined in the U.S. Constitution and therefore does not exist leaves the door wide open for a series of legal challenges that, if successful, could turn back decades of progress toward equality and democratic governance.

While we don’t know who leaked the draft Supreme Court opinion or what the leaker or leakers’ intentions were, we know there is something all of us can do as Americans to protect women’s rights to reproductive freedom and bodily autonomy: Vote, and encourage others to vote, for leaders who will uphold gender equality and reproductive freedom, both in Congress and in the lower offices that are the pipeline for future legislators. Vote in great enough numbers, and we can establish once and for all that women have a right to control what happens to their own bodies.