Skip to Content

Surrogate Claims Contract Violates Her Constitutional Rights

On February 25, 2016 by

A surrogacy arrangement made headline news recently when the surrogate refused to abort one of the triplets she was carrying. According to the surrogacy contract she signed, the intended father could “selectively reduce” the number of fetuses to the number of his choosing. When he made the decision to do so, the woman not only refused, she filed a lawsuit claiming California surrogate law is unconstitutional.

The surrogacy arrangement between the 47-year-old California woman and the 50-year-old Georgia man started with both parties in agreement. The pregnancy resulted through in vitro fertilization, with sperm from the intended father and eggs from an anonymous 20-year-old donor, and implantation into a third party host. The surrogate became pregnant with triplets. The intended father asked to have one of the fetuses “reduced” due to potential health risks for the babies. The woman refused, which violated the terms of their surrogacy contract.

The surrogate’s attorney filed a lengthy complaint asserting the contract with the biological father and the California surrogate law it is based on violate his client’s due process and equal protection rights under the United States Constitution. The woman claims the surrogacy agreement she signed is invalid and wants out of her obligations. She also claims she is the legal mother of the triplets and seeks custody of at least one who was targeted for abortion.

Surrogacy laws vary from state to state. Some states entirely outlaw surrogacy, while some states allow it, but don’t allow surrogates to be compensated. In Florida, the laws protect the rights of all involved: the intended parents, the surrogate, the baby, and the egg donor. It is crucial that the rights and obligations of all parties in the contract be clearly spelled out for their protection in case complications arise.

This lawsuit will force the court to decide if their surrogacy agreement is valid and enforceable, and also assess how parentage is determined. Finally, will their contract fend off constitutional inquiry? Only time will tell.

Eric Klein

Eric is the Principal Attorney and President of Klein Law Group. He has spent over 25 years practicing law and guiding clients through some of the most challenging times of their lives.