Can I make my surrogate have an abortion under Florida surrogacy laws?
Pursuant to Florida law (which stems from a woman’s right to make decisions that relate to her body), ultimately decisions relating to a surrogate's body, such as having an abortion or not, are the surrogate’s decisions to make. Contractually pursuant to a gestational surrogacy agreement, a surrogate may agree to defer to the intended parents' wishes on what to do and not do relating to the surrogate's body, this could be topics such as diet, bedrest, performing an invasive procedure, or having or not having an abortion or selective reduction. It is important that your Florida surrogacy contract address the parties intent on the surrogate respecting the intended parents wishes on big topics, such as abortion/selective reduction and following doctor guidelines and precautions during the pregnancy. Pursuant to the American Society for Reproductive Medicine ("ASRM") who establishes best practices, guidelines and ethics for surrogacy, the ASRM states regarding the surrogate's ultimate decisions relating to her body, "The gestational carrier retains all rights to direct her medical care, including any decisions regarding prenatal testing, pregnancy termination, or multifetal pregnancy reduction" During surrogacy contract discussions, it may come up that a surrogate is not willing to have an abortion unless her life is at risk, or that the surrogate is not willing to have certain invasive testing performed, which is important to document in the surrogacy contract so the parties have a clear understanding of their positions moving forward into a pregnancy. Regardless of what the surrogate agrees to do or not do in the surrogacy contract regarding her body, the ultimate decision is that of the surrogate's to make. Pursuant to Florida surrogacy laws, the following language must be within a surrogacy contract regarding the surrogate's ultimate decision regarding any decisions relating to her body.
Pursuant to Florida Statutes 742.15(3)(a): (3) A gestational surrogacy contract must include the following provisions:If a surrogate goes against what she agreed to do regarding her body in the surrogacy contract, the intended payments may potentially have certain contractual monetary remedies available to them against the surrogate and payments potentially may not continue to be made to a surrogate from the escrow company based on a breach of this type of contract claim. Based on Florida law, an intended parent cannot force a surrogate through specific performance to do or not do something relating to her body. For example, a Florida judge will not require a surrogate to have an abortion if she refuses to have one but agreed to have one in the surrogacy contract. It is critical in the matching process prior to entering into the Florida surrogacy contract that the intended parents and surrogate discuss important issues such as whether or not the surrogate would agree to have an abortion or selective reduction based on the request of the intended parents. The above issue further demonstrates the importance of performing a psychological evaluation at the beginning of the surrogacy screening process to make sure that the parties see eye to eye on issues like this such as abortion if a surrogate is open to doing it if the intended parents requested. While a psychological evaluation is not legally required in Florida, it is for sure a best practice to follow and most fertility clinics will require a psychological evaluation to be performed before approving ga surrogate to move forward with the contract. The ASRM guidelines on "Recommendation for practices utilizing gestational carriers: a committee opinion" recommends discussing in part, some of the following issues such as abortion and selective reduction as part of the psychological screening by providing the following guidelines:(a) The commissioning couple agrees that the gestational surrogate shall be the sole source of consent with respect to clinical intervention and management of the pregnancy.
Psychosocial consultation for gestational carriers includes: i. Informing the potential gestational carrier and her partner regarding the potential psychological issues and risks associated with the process ii. Discussion of the medical protocol, including scheduling demands, risks of cancelled cycle and unsuccessful cycle, multiple pregnancy, multifetal pregnancy reduction, prenatal diagnostic testing, and elective termination iii. Discussion of requirement of intended parent(s)'agreement with gestational carrier regarding all medical issues iv. Definition of role/function of the qualified mental health professional