What Happens When Surrogacy Meets Abortion?

Amie Newman

The legal and bioethical considerations of surrogacy are complex. The laws from state to state vary, as they do from country to country and there is hardly unity on surrogacy as a feminist or reproductive justice issue, either.

Surrogacy, as with many forms of assisted reproductive technology (ART), has its ethical, legal and societal implications (Remember “Baby M”?). Far be it from me to stand in the way of – or judge – a woman, man or couple, who are desperate to parent and bring a baby into their lives by whatever safe, healthy and legal means they choose. Of course, as I mention, it has not gone without notice that ART does bring rise to some complex and controversial bioethical considerations. Jennifer Rodgers broaches one of these conversations on Rewire, in fact.

So, when I read today of the story about a woman who acted as a gestational surrogate for a couple, in Vancouver, BC, and what ultimately transpired, I was compelled to explore it.

According to the reports, the surrogate discovered that the fetus she was carrying would likely be born wtih Down Syndrome. An ultrasound during the first trimester showed the fetus to have trisomy 21 – the genetic condition which leads to Down Syndrome. With this knowledge, the couple reportedly told the surrogate that they wanted her to have an abortion.

According to the physician treating the woman, Dr. Ken Seethram, it appeared that after the news of the trisomy 21 condition was revealed, neither the couple nor the woman were prepared for what to do next.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

“They were certainly quite shocked,” he said. “Obviously, [the parents] had come on a long journey before commissioning the surrogacy, [but] all they were thinking about was success.”

“…the couple and the surrogate always got along and their disagreement on what to do never became acrimonious or tense, Dr. Seethram said. But the physician with Pacific Centre for Reproductive Medicine said it appeared to him that the three had never seriously considered such a scenario before the pregnancy.”

Under the contract entered into by the three adults, if the surrogate decided to bring the pregnancy to term against the wishes of the couple, the couple were “absolved” from any responsibility to care for the child.

Ultimately, it didn’t come to that. The woman eventually chose to have an abortion, in that first trimester. It was a decision she came to on her own, in part after weighing her current familial obligations (she already has two children). 

And experts quoted in the article had different perspectives:

Dr. Seethram’s presentation to the Canadian Society of Fertility and Andrology conference suggested the accord signed by the three in B.C. may have undermined the surrogate’s right to make decisions in a “non-coercive” environment.

While a former surrogate and parent advocate notes,

A former surrogate who helps parents and mothers make such arrangements said the parties should agree on what they would do if defects are discovered during pregnancy, ensuring they have the same views on abortion. If a dispute still arises, however, parents ought to be protected, said Sally Rhoads of SurrogacyInCanada.ca.

“The baby that’s being carried is their baby. It’s usually their genetic offspring,” she said. “Why should the intended parents be forced to raise a child they didn’t want? It’s not fair.”

Rhoads goes on to say,

In some U.S. jurisdictions, in fact, parents can even sue a surrogate to recoup their payments if the woman insists on going ahead with a pregnancy against their wishes, Ms. Rhoads said.

The American Surrogacy Center strongly advises that any issues regarding potential birth defects and abortion always be discussed prior to entering into any contractual arrangement.

There is a question, of course, about the responsibility parents who “commission” a pregnancy have in this scenario and the “abandonment” of not only a contract, but the woman and the fetus, should the couple decide not to go through with the surrogacy agreement. This leaves a pregnant woman in an extremely difficult scenario, of course. But there are other challenging situations. What if the surrogate decides, after being implanted with a couples’ fertilized egg, that she in fact does not want to go through with the pregnancy and wants an abortion within the confines of the law? She should not be forced to bring the pregnancy to term, of course. Yet, the fetus growing inside of her is “technically” the biological creation of another.

The legal and bioethical considerations are complex. The laws from state to state vary, as they do from country to country. There is hardly unity on surrogacy as a feminist or reproductive justice issue, either. Some say surrogacy exploits lower income women. Yet, for gay couples looking to start a family, surrogacy may be an enticing option. Organizations like the Women’s Bioethics Project continue to explore the rocky landscape of ART, including surrogacy, and how we can and should be structuring our public policy in relation to these issues. As recently as May of this year, the group was working with reproductive justice and women’s legal advocates to draft legislation on commerical surrogacy in Washington state. But as this case highlights, it’s hardly a cut and dried issue and we’re still left with more questions than answers.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”

Analysis Politics

Libertarian Nominee Gary Johnson’s Abortion Doublespeak

Ally Boguhn

In an election year when many voters are increasingly frustrated with their options, both Gary Johnson's presence in the race and his policy positions are notable. When it comes to reproductive rights in particular, Johnson appears to have spent years walking a fine line.

The Democratic Party won’t be the only one on the ballot this November with a self-described pro-choice nominee on its presidential ticket. Libertarians chose former New Mexico Republican Gov. Gary Johnson, a self-identified pro-choice candidate, as the party’s nominee for the 2016 race during their convention on May 29.

Though Johnson’s chances of becoming president are low, the Libertarian Party will likely be the only third-party option on the ballot in all 50 states. According to statistical analysis site FiveThirtyEight, several recent national polls have the Libertarian nominee taking 10 percent of the vote. Those numbers are nothing, the site noted, to shrug at: “Gary Johnson is neither Donald Trump nor Hillary Clinton. He might not win a state, but he could make some noise.”

In an election year when many voters are increasingly frustrated with their options, both Johnson’s presence in the race and his policy positions are notable. Candidates need only reach 15 percent in selected public opinion polls to make it to the national debate stage, meaning Johnson may have a shot at bringing his opinions to the masses.

When it comes to reproductive rights in particular, Johnson appears to have spent years walking a fine line, frequently presenting himself as “pro-choice” while simultaneously opposing abortion on a personal level and supporting some restrictions on the procedure. “[Abortion] should be left up to the woman,” said Johnson during a 2001 interview with Playboy, adding that if his “daughter were pregnant and she came to me and asked me what she ought to do, I would advise her to have the child. But I would not for a minute pretend that I should make that decision for her or any other woman.”

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Johnson’s current campaign website continues this trend, seemingly attempting to have it both ways on abortion. It borrows aspects from both anti-choice and pro-choice advocates and pushes the line that the candidate “has the utmost respect for the deeply-held convictions of those on both sides of the abortion issue.”

“It is an intensely personal question, and one that government is ill-equipped to answer,” reads Johnson’s campaign site. Though the site notes that the candidate has “never advocated [for]abortion or taxpayer funding of it,” it goes on to explain that Johnson supports the “right to choose.”

“Further, Gov. Johnson feels strongly that women seeking to exercise their legal right must not be subjected to persecution or denied access to health services by politicians in Washington or elsewhere who are insistent on politicizing such an intensely personal and serious issue,” concludes his abortion platform before adding an aside that he supported bans on “late term abortions” during his time as governor. The page does not define what “late term abortion” means in this context, nor does it go into more detail about what specific bans Johnson backed.

Johnson’s attempts to craft his own middle ground in the abortion debate during the 2016 elections are holdovers from his past run for the White House during the 2012 election, when he ran as a Republican before switching over to the Libertarian Party. During a June 2011 interview with Rolling Stone, Johnson plainly stated his position on abortion, as well as several anti-choice measures he has supported in the past:

I support women’s rights to choose up until viability of the fetus. I’ve supported the notion of parental notification. I’ve supported counseling and I’ve supported the notion that public funds not be used for abortions. But I don’t want for a second to pretend that I have a better idea of how a woman should choose when it comes to this situation. Fundamentally this is a choice that a woman should have.

Johnson consistently says he is pro-choice up until the point of viability, something already enshrined into law in Roe v. Wade. As Rewire has previously reported, “Even though the Court in Roe decided that fetal viability would be the benchmark for the balance between a person’s right to choose and the state’s interest in “potential life,” the Court was silent on when fetal viability occurs. It left that decision up to doctors.”

In August 2011, during an argument with the editor in chief of the conservative CNS News, Terry Jeffrey, Johnson fired back at the host for pushing him to concede that a fetus should have the same “right to life” as born individuals. This argument is often used by conservatives to support so-called personhood legislation, which would grant constitutional rights to a fetus as early as conception, and could outlaw abortion as well as many forms of contraception.

“What you’re saying is that you would take this away from a woman, you would criminalize a woman who is making a choice that I believe only a woman should make,” said Johnson, who flatly asserted that women should have the right to opt for abortion up until the point of viability. “And you may in fact be criminalizing the activities of doctors who are involved also,” he noted.

Johnson’s critique of Jeffrey’s question and his clear opposition to criminalizing those who have or provide abortions stands in contrast to presumptive Republican nominee Donald Trump, who said in March that those who have abortions should face “some form of punishment” if it was illegal, only to later claim that doctors—not women—should be punished.

Even so, Johnson again touted his support for a number of restrictions on abortion access, presumably to shore up support among Republican voters. “I signed a law banning late-term abortion, believing there is a point of viability,” said Johnson on the show, “and I also as governor of New Mexico supported parental notification. I have also always supported counseling.”

State-mandated counseling for abortion-which is what Johnson seems to be pitching-often requires “information that is irrelevant and misleading,” according to a March 2016 report from the Guttmacher Institute. The waiting periods that frequently accompany such laws, for that matter, often create hardship for women by adding additional expenses or logistical hurdles for those seeking abortion care. Guttmacher also found in a 2009 report that the most direct impact of common parental consent laws “is an increase in the number of minors traveling outside their home states to obtain abortion services in states that do not mandate parental involvement or that have less restrictive laws.”

Johnson’s claim about banning later abortions during his tenure as governor of New Mexico, meanwhile, presumably refers to a so-called partial-birth abortion ban outlawing certain kinds of later abortions-though, like the claim on his 2016 website, the specifics are not clear Johnson signed the ban into law in 2000, making it the first restriction on abortion put in place in the state in more than 25 years.

In truth, “partial-birth abortion” is an inflammatory non-medical term, coined by the anti-choice National Right to Life Committee in 1995 in an effort to make passing abortion restrictions easier. It is often used to describe the dilation and extraction abortion procedure (D and X), typically performed between 20 and 24 weeks of pregnancy. New Mexico’s law made it a fourth-degree felony for a doctor perform the procedure on “an independently viable fetus.” As NPR has reported, most D and X abortions actually do not take place after viability:

And contrary to the claims of some abortion opponents, most such abortions do not take place in the third trimester of pregnancy, or after fetal “viability.” Indeed, when some members of Congress tried to amend the bill to ban only those procedures that take place after viability, abortion opponents complained that would leave most of the procedures legal.

According to the Albuquerque Journal, “abortion opponents say the [2000] law had little impact because it pertained only to cases in which a fetus had attained viability, which is defined as being able to live outside the womb.”

Johnson also asserted during a 2011 Republican debate hosted by Fox News that he would have signed a ban on later abortion, had one reached his desk. However, he again did not elaborate on what point in pregnancy such a ban would apply or whether it would have exceptions.

Johnson’s 501(c)(4) organization, Our America, has gone as far as to call for Roe v. Wade to be completely overturned. When Johnson was running for president in 2012, the group’s site discussed the candidate’s position on abortion before calling for the Supreme Court to overturn the case:

Judges should be appointed who will interpret the Constitution according to its original meaning. Any court decision that does not follow this original meaning of the Constitution should be revisited. That is particularly true of decisions such as Roe vs. Wade, which have expanded the reach of the Federal government into areas of society never envisioned in the Constitution. With the overturning of Roe vs Wade, laws regarding abortion would be decided by the individual states.

Any mention of the topic seems to have been scrubbed from the current version of the organization’s website, but Johnson’s pitch for a potential replacement for Justice Antonin Scalia on the Supreme Court speaks for itself. Shortly after the justice’s death in February, Johnson shared a picture of himself on Facebook with Fox News’ senior judicial analyst, Andrew Napolitano, calling the conservative media figure a “great candidate” for the vacant seat.

Napolitano is stringently anti-choice: During a January 2016 segment for Fox News, Napolitano blasted the Court’s decision in Roe, claiming that it allows the “murder of babies in the womb,” advocating for Congress to pass an extreme “personhood” amendment in order to end legal abortion. He also compared Roe v. Wade to the Supreme Court’s decision in Dred Scott v. Sanford, which denied personhood to Black Americans, essentially upholding slavery.

Napolitano also took issue with exceptions to abortion bans in cases of rape in a 2012 opinion piece for FoxNews.com after former Missouri Republican Rep. Todd Akin notoriously claimed that in cases of “legitimate rape, the female body has ways to try to shut the whole thing down.”

“Rape is among the more horrific violations of human dignity imaginable,” wrote Napolitano. “But it is a crime committed by the male, not the female—and certainly not by the child it might produce. When rape results in pregnancy, the baby has the same right to life as any child born by mutually loving parents. Only the Nazis would execute a child for the crimes of his or her father.”

This rhetoric echoed Napolitano’s recent comparison of the legalization of abortion care to “the philosophical argument underlying the Holocaust.”

Johnson’s willingness to consider Napolitano to fill a Supreme Court vacancy make one thing clear: Even if Johnson claims to be pro-choice, should he win the White House, access to abortion may still be in jeopardy. The Libertarian nominee’s support of a number of abortion restrictions and apparent willingness to nominate anti-choice justices to the Court call into question whether the “right to choose” Johnson claims he supports would truly remain—an alarming prospect given the increased attention the candidate is receiving in the 2016 election.