Texas SB8 in the Context of Surrogacy

Look. I am not interested in debating someone who has never heard a doctor say the words, “Your baby won’t live, no matter what we do.” Your “truth” about abortion doesn’t matter unless and until you are in that situation, a situation requiring your choice or where the choice was taken from you.

I’ll let everyone else make all the points about access to safe abortions, and all the situations where terminating a pregnancy is an important healthcare right.

What I want to share are the implications of this Texas law in the context of surrogacy because it is different from other laws and impacts intended parents in a way that has my heart on fire.

Some might be scratching their head, thinking, why would abortion have anything to do with surrogacy? Surrogacy is for people desperately trying to have a baby, so terminating a pregnancy wouldn’t make sense.

You’re right. Those pursuing surrogacy want nothing more than to have a baby, and those wonderful surrogates carrying babies for intended parents want to help bring life into this world.

But, here’s the thing: terminating a pregnancy isn’t black and white. It’s never an easy decision, or one anyone involved ever takes lightly. And yes, pregnancies are terminated, even when the pregnancy is very much wanted.

This law in Texas is especially scary for intended parents via surrogacy and here is why.

In surrogacy, IVF is used, so one (typically only one nowadays, but sometimes two) embryo is transferred to a surrogate. In order to get to transfer day, a lot of steps happen, including a contract that outlines what is to happen in a variety of situations, including the agreement on termination.

The intended parent(s) is/are responsible for all expenses related to the pregnancy. Under this Texas law, intended parents would absolutely be targeted for assisting the carrier in terminating the pregnancy. Read that again, but let me say it louder for those in the back. The parents would be sued. The mom(s). The dad(s). The parents mourning the loss of their child would be sued.

Imagine a couple of these scenarios.

Imagine spending your life wanting to be a parent. Years of heartbreak lead you to surrogacy. You probably spent thousands of dollars to get to that point, and now surrogacy leads you to have to spend tens of thousands more. This is your dream, so you scrimp and save your way to be able to do it. You finally have a baby on the way via a gestational carrier and think everything will finally work out. Then, the anatomy scan at 20 weeks reveals a diagnosis that’s not compatible with life. You’re devasted, heartbroken and somehow back in a nightmare once again. This nightmare, though, has strangers incentivized to make your personal hell even worse. You’re now faced with a “choice”: assist your surrogate in terminating the pregnancy and risk being sued (you’re contractually obligated to cover all related expenses), or continue to pay the surrogate to carry to term (typically 3k+/month), while incurring all the typical medical expenses, to end up with no baby either way. In the middle of losing a child, no one should have to worry about being sued by a stranger!

If the embryo(s) split, it could become a situation where reduction is needed in order to give the pregnancy the best possible chance. Multiples increase risks, not only for losing all the babies, but also risks to the carrier. A pregnancy can be reduced early on in order to reduce those risks and a healthy baby can make it to full-term. However, the Texas law only allows for medical emergencies, meaning that while everyone involved can see the potential risks, they have to standby and do nothing like a slow motion trainwreck. One that can result in losing all the babies, and the carrier’s life, because they were forced to wait too long.

I’m skeptical that leaving the state of Texas for the procedure would afford any shield from lawsuits for intended parents because even if the law doesn’t cover out of state abortions, you could be dragged into court to prove it. You would also risk being dragged to court even if it was a medical emergency, to prove in court that it was.

This law effectively makes Texas not surrogacy friendly because we need to be able to reduce risks for our carriers, ourselves, and our babies we so desperately want. And with other states saying they are looking to quickly follow suit, intended parents are suddenly looking at future where becoming a parent to a biological child may be nearly impossible.

And I’ll say it again, in case you forgot while reading this and somehow think you have to tell me how wrong I am to be pro-choice. I’m not interested in hearing any debate from those who have never heard a doctor say, Your baby won’t live, no matter what we do.

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