When abortion and surrogacy law collide, contracts can’t answer the hardest questions

Surrogacy arrangements – agreements for someone to carry a pregnancy for the intended parents – have existed for millennia, and modern surrogacy contracts for half a century.

These contracts typically address parental rights, the possibility of abortion, medical instructions, health insurance and payment of expenses, each side with its own legal representation. The contracts are usually honored, resulting in thousands of babies born through surrogacy in the U.S., at a cost that can top US$200,000 when agencies are involved.

In a 2026 case, surrogate McKenna West refused the intended parents’ request for an abortion after the fetus was diagnosed with a serious heart condition. The case raises an uncomfortable question: What happens when the surrogate’s bodily autonomy collides with the intended parents’ wishes?

As scholars of reproductive justice and family law, we see this case as an example of how rapidly changing abortion laws, reproductive technology and family law can create conflicts that surrogacy contracts cannot necessarily anticipate.

The West case

West’s contract stated that “there shall be a termination of the pregnancy for a fetal abnormality … if the Intended Parents request” it. She later wrote that “their lawyer and my own former lawyer sent me letters threatening six-figure penalties if I didn’t comply with their demand to terminate.”

Instead, West moved from Alaska to Texas, where she had family support and believed the baby, when born, could get needed care. Moreover, she knew that Texas bans abortion in almost all circumstances. Meanwhile, the intended parents, who lived in California, obtained a court order before the birth stating they would become the legal parents once the baby was born.

Before West gave birth, the Texas attorney general obtained a court order requiring lifesaving care for the baby, stating that “the intended parents have refused to agree that they will consent to the lifesaving surgery.” West sought custody but was willing to drop her claims if the couple agreed to the baby’s treatment.

After the Texas courts upheld the intended parents’ rights, West asked the Supreme Court to intervene so she could receive “further information about the child she carried for 37 weeks and fought to save.” The court declined, leaving West no rights to the baby.

Previous conflicts

In a similar 2012 case, surrogate Crystal Kelley signed a contract allowing the intended parents to call for an abortion in case of a severe fetal abnormality. When the fetus was diagnosed with a heart defect and other serious anomalies, the parents asked Kelley to terminate the pregnancy. She refused and left Connecticut, where she would not have had parental rights, for Michigan, which at the time would treat her as the legal mother. Kelley placed the baby for adoption, and the girl’s adoptive parents raised her until her death at 8.

In the 1988 Baby M case, a surrogate who was also the genetic mother insisted she should be the mother despite signing a contract to relinquish parental rights. The New Jersey Supreme Court voided that contract because it held that she could not give up her parental rights before birth. As a result, it recognized the surrogate as the legal mother but awarded custody to the father. She later received visitation rights.

A state-by-state patchwork

Surrogacy contracts establishing legal parentage are enforceable in a number of states. But surrogacy laws vary by state, creating a patchwork with respect to enforceability.

West’s journey, for example, involved three states – Alaska, Texas and the intended parents’ state of California. They are deemed surrogacy-friendly, meaning contracts are relatively easy to enforce there, though the states diverge sharply on abortion.

Surrogacy agreements may require the surrogate to restrict travel, eat nutritiously and cooperate with healthcare providers. As in the West and Kelley cases, agreements may also specify when the surrogate could be asked to abort or, if pregnant with multiple fetuses, selectively terminate.

These abortion provisions have rarely been tested in court, and West’s case hasn’t resolved whether they are enforceable. Rather, they raise the question: Can anyone be forced to have an abortion?

After the Supreme Court’s 2022 Dobbs decision, which held there is no fundamental right to abortion, states have determined their own abortion laws. In states like Texas, abortion provisions in surrogacy contracts are unenforceable. But even where abortion is legal, a court would likely refuse to compel an abortion, given the surrogate’s bodily autonomy.

A surrogate’s control over her body may be more limited, however, when intended parents seek to enforce provisions meant to protect the fetus.

If a physician recommends a C-section for the fetus’s well-being and the surrogate refuses, for example, a court might enforce a contract clause requiring her “to cooperate with her medical providers.”

Even before 2022, when abortion was still a federal constitutional right, courts in some – but not all – jurisdictions ordered C-sections against the pregnant person’s wishes.

In other words, bodily autonomy has never been absolute for pregnant people.

A post-Dobbs world

Since Dobbs, surrogacy and abortion have become increasingly intertwined.

In 2025, a Florida judge questioned the constitutionality of surrogacy on fetal-personhood grounds – the legal theory that an unborn fetus or embryo has the same legal rights as a born human – even as he granted the intended parents parental rights.

In his view, there can be no “contractual ownership interest over the unborn baby.” Florida’s attorney general took the argument further, declaring that the couple’s contract with the surrogate violated the 13th Amendment’s ban on slavery. A spokesperson said he was concerned “about any case where a surrogacy company profits off the sale of children.”

Some conservative legislators and advocacy groups have also been challenging the legitimacy of surrogacy, a few with plans to limit or even ban it. Consequently, in states that take fetal and embryo personhood seriously, surrogacy contracts and even IVF could become unavailable.

West’s case has surfaced starkly different views of what is at stake. For some, surrogacy is a form of baby selling that should not be allowed. For others, it is a way for intended parents to create families and for surrogates to support them.

Surrogacy asks the law to recognize both the interests of people who intend to become parents and the autonomy of the person who is pregnant. Dobbs has made that balance harder to maintain by inviting fetal-personhood principles into areas of law that had not previously treated fetuses or embryos as persons.