Aug 2

NH Surrogacy Law: What No One Wants to Talk About

NH surrogacy laws abortionWho wants to talk about abortion when you are thinking about your future child? Pretty much nobody, right? Certainly no one enters into a surrogacy arrangement with the intention to have an abortion. But it’s a necessary evil to discuss this issue ahead of time. And New Hampshire lawmakers got it 100% right when they passed a surrogacy bill that requires the participants in a surrogacy arrangement to nail down their mutual agreements on this thorny issue before a baby is on the way.

It cannot be emphasized enough that a match should never go forward unless the intended parents and the surrogate have the same personal views on abortion. This way, should a situation ultimately come up where pregnancy termination becomes an issue, the parties are coming to the table with the same pre-existing viewpoints on the topic. This makes it much easier for everyone to be comfortable with the ultimate decision, even when the legal right to make the decision rests entirely with the surrogate.

“But this will never happen to us,” you may think. Unfortunately, this issue does come up all too often. A quick Google search turns up several such highly publicized cases over the past few years in which the intended parents desired an abortion for reasons ranging from the baby having severe congenital abnormalities to the intended parents simply deciding they didn’t want the child. Here’s one recent case from Thailand. The short story is that the foreign intended parents requested that the surrogate have an abortion when they learned one of the twins had Down Syndrome. The surrogate refused, and the intended parents responded by only accepting the unaffected baby. (The intended parents tell a different story.) The bottom line is that these types of situations can be avoided by making sure that the intended parents and surrogate are on the same page with regards to approaching health issues during pregnancy. As I have said before, disagreement on this critical issue is a surrogacy match deal-breaker. I want people to view this as a cautionary tale about the need to be careful from the beginning, rather than as a condemnation of surrogacy overall. The kind of thorough preparation required by New Hampshire’s surrogacy statute is a tremendously effective way to cut down on these kinds of conflicts once there is an actual baby on the way.

It’s also important to keep in mind that this issue is equally relevant to cases in which the surrogate wants to terminate, but the intended parents don’t want that to happen. For example, a surrogate may be diagnosed with heart failure, such that her life can only be saved by immediate delivery of the child. If the fetus is close to viability, does the surrogate have any obligation to try to delay the delivery for a few days to give the baby some chance at survival? Or what if the surrogate is diagnosed with an extremely rapid-spreading form of cancer that cannot be treated during pregnancy? Does the surrogate risk her own health in order to continue the pregnancy? Consider that many surrogates are the primary caretakers for their own young children, who would be deeply impacted by the loss of their mother.

Most prospective parents don’t have to thoroughly think through these kinds of complex issues before pregnancy. Intended parents through surrogacy don’t have that luxury.

NH Reproductive Attorney Catherine Tucker