On Friday, June 24 2022 in Dobbs v. Jackson, the Supreme Court overturned an almost-50 year old law protecting a woman’s established right to terminate her pregnancy, deeming it “unconstitutional” and defying landmark precedent in the matter.  For many of our clients and for women and families around the country, this ruling is particularly troubling for many reasons.  Many of you will likely have questions as you embark on your surrogacy journey, and we will do our absolute best to be on top of the most accurate and updated information possible.  First, here is a joint statement from maternal health specialists in reaction to the decision:

Joint_Maternal_Health_Statement_in_Dobbs

***The Surrogacy Center agrees wholeheartedly with this statement as it effectively summarizes our position on this matter and serves to lay out in great detail just how harmful this decision is to women and families in the United States.***

For an up-to-date map on where each state currently stands, please visit the Center for Reproductive Rights website and click on the state in question.

Next, we will address some FAQs in order to try to answer any initial questions we will likely get as a result of this ruling.

1. What happens in MINNESOTA if a GC needs to terminate a pregnancy?

Abortion remains legal in Minnesota and is likely to be for the unforeseeable future.  In Women of Minn. v. Gomez, 542 N.W.2d 17 (Minn. 1995), the state’s highest Court recognized the right to abortion under the Minnesota Constitution, protecting the right to choose as a fundamental one – even to a greater extent than the U.S. Constitution before Roe was overturned.  This cannot be undone by executive action even if an anti-abortion governor were to win the election in 2022, so the worst case scenario is that should that happen, they would have to amend the constitution, with a question added to the ballot in the 2024 election. As a large majority of Minnesota residents favor abortion rights, this is unlikely – but it is nonetheless important to know what the implications could be should the political climate in MN be reversed.

2. What will happen in WISCONSIN if a GC needs to terminate a pregnancy?

Abortion has been officially banned in the state of Wisconsin, as the SCOTUS ruling means Wisconsin has reverted to it’s last abortion law from 1849 which prohibits abortions at any gestational age. The ONLY exception is if the mother’s/carrier’s life is at risk, making it necessary for a doctor to determine if an abortion is medically necessary to save a woman’s life.

The current governor, lieutenant governor and attorney general in the state of Wisconsin are vehemently against the reversal of Roe and are protectors of abortion rights, and have stated they will in no way enforce the ban.  However – it will be up to local jurisdictions as to whether or not they will use their resources to enforce the 170+ year-old ban, which still needs to be clarified (and will likely be challenged), so it is still unknown as to what this will look like in the near future.

If the current governor and attorney general are not reelected in 2022, it is very likely that the laws will become even more restrictive in Wisconsin than they are now.

3. What are our legal options if a GC lives in Wisconsin and needs to terminate a pregnancy?

Surrogacy attorneys all over the country are in the midst of reviewing the various state laws and what impacts they would have on Gestational Carrier Agreements.  Currently, many attorneys are adding language to the contracts that state that if termination is necessary or imminent and the GC resides in a state with a ban, the IPs must cover the costs for their GC to travel to an abortion-friendly state (such as Minnesota or Illinois) for the procedure.  The only foreseeable problem with this would be if Wisconsin (or other states where bans have gone into effect) enacts legislation to prosecute a woman for crossing state lines for an abortion, as well as anyone who assists her in doing so (as is the case in Texas). Currently there is no law or statute that dictates this, but we will continue to watch and will update these answers as more information comes in.

4. How does the ruling affect IVF in general?

According to Forbes, “Overturning Roe v. Wade will not automatically outlaw ART and IVF. However, a number of states have “trigger laws” in place that could outlaw abortion if Roe v. Wade is overturned, including Kentucky, Texas and Louisiana.”

The full article can be found here.

Another article from the Washington Post that discusses the matter in more detail may be found here.

CONCLUSION: 

In general, much of the information surrounding this ruling is still up in the air – as attorneys, agencies, legislators and medical professionals are scrambling to make sense of each implication that could arise after the ruling and what it would likely mean for various clients.  At The Surrogacy Center, we stand firm in our resolve to give our clients the most updated and accurate information we possibly can, while emphasizing that everything is in a virtual flux at the moment.

We are committed to fighting for the rights of women and families everywhere to build their families as they see fit and to protect the confidentiality of all of our clients as we navigate these rough waters.  As SCOTUS has egregiously misinterpreted the notion of constitutionality and applied their political views in an activist manner to this decision, you can rest assured that we will fight to protect the privacy and decisions a woman makes with her doctor and/or her Intended Parents.

-The Surrogacy Center