Legal Uncertainty after The Supreme Court’s Overturning of Roe v. Wade: What Remains Unknown and What Comforts We Can Take

Eric Wrubel and Alexis L. Cirel

Co-Chairs of the Fertility Law Group of Warshaw Burstein, LLP

In the weeks following the United States Supreme Court’s overruling of Roe v. Wade in Dobbs v. Jackson Women’s Health Org. and the immediate “trigger” of twelve abortion-banning state statutes that resulted, uncertainty and incredulity have pervaded discussions among so many Americans.  For those involved in assisted and third-party reproduction – whether as intended parents, surrogates, physicians, lawyers, agencies, or otherwise – such uncertainty has been particularly acute and overwhelming in understanding the breadth of the potential impact of SCOTUS’s recent decision.  

Among the many unanswered questions are: What will occur if a surrogate and the intended parents agree to terminate a pregnancy under circumstances in which the surrogate’s life is not in danger, but an abortion would be prudent?  If a surrogate lives in a state that restricts access to abortion, is a surrogacy agreement containing provisions for termination evidence of an intent by intended parents to “aid and abet” an abortion if the surrogate, in fact, obtains an abortion?  If fetuses and embryos are afforded the same legal standing as a living person, does the discarding of unused embryos expose intended parents and/or medical providers to potential liability?  While definitive answers to these and so many other concerns remain out of reach, and while the ultimate answers will likely vary by jurisdiction, there is some comfort to be taken generally based on what is known today.  

With the Dobbs decision being handed down, twelve anti-abortion statutes were immediately triggered into law within their jurisdictions.  The laws are based generally on the premise that life begins immediately upon pregnancy (and in some cases upon fertilization of an egg by a sperm) and, thus, abortions are tantamount to homicide.  The states with trigger statutes are Arkansas, Idaho, Illinois, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming; an additional five states are considering such laws right now.  In these twelve states, presently, a licensed medical practitioner is banned from performing an abortion on a pregnant woman except in the limited situation to save her life; a pregnant woman who undergoes an abortion, however – surrogate or otherwise – is not subject to criminal liability.  

Many of these statutes also contain “aiding and abetting” language, which extends potential liability to individuals who participate in or somehow facilitate an abortion.  However, in all cases except for Oklahoma, such language applies only to individuals in the medical field assisting with an abortion.  Thus, we can conclude that if a surrogate terminates a pregnancy, the intended parents are not at risk of criminal liability for “aiding and abetting” as a result of the contractual relationship between those parties. 

Sadly, the anti-abortion statute in Oklahoma is far more all-encompassing and punitive than the eleven other statutes.  The language in the Oklahoma statute defines “aiding and abetting” to include “paying for or reimbursing the costs of an abortion through insurance or otherwise . . .” regardless of whether the individual paying for such services knew an abortion would occur.  Thus, intended parents who reimburse costs to a surrogate pursuant to an agreement and/or provide health insurance benefits paid for by the intended parents could potentially be found liable under the Oklahoma statute for aiding and abetting an abortion.  With such language presently the law in Oklahoma, best practice would suggest avoiding the state of Oklahoma entirely – at least for now – when proceeding with a surrogacy arrangement.  

In light of the current legal climate, surrogacy agreements should include provisions contemplating and providing for transportation of the surrogate out of one of the trigger states to obtain an abortion if such a procedure becomes necessary.  Indeed, identifying the nearest sanctuary jurisdiction to obtain an abortion should be detailed in any surrogacy agreement as well as the surrogate’s means to get to such a facility; payment and/or reimbursement for the costs associated with such a procedure should also be set forth in the surrogacy agreement.      

Beyond just implications for surrogacy arrangements, SCOTUS’s reversal of Roe v. Wade has the potential for a broader impact on reproductive medicine including the possibility of “fetal personhood” legislation conferring fetuses and embryos the same legal standing as a living person.  As noted in the ASRM’s Center for Policy and Leadership report earlier this month (July 2022), such laws could expose routine ART procedures such as IVF, preimplantation genetic testing, and the discarding of unused embryos to legal challenge and providers who practice such procedures to potential liability. 

Presently, there are no statutes in the US criminalizing the destruction of embryos, however, the definitions set forth in some of the trigger statutes is disconcerting.  For instance, in Kentucky an unborn child is defined as: “that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.”  According to Kentucky, an embryo need not even implant into a woman’s uterus before being considered an unborn child.  This would seem to suggest that an unborn child includes frozen embryos being stored by an IVF clinic or any other facility.  

Embryos are generally tested within the first few days to identify a genetic pre-disposition for a chromosomal abnormality or disease.  The Kentucky definition of an unborn child would suggest embryos which should not be gestated cannot be destroyed as they are an “unborn child”.  If destruction of an embryo (i.e., an unborn child) is tantamount to an abortion in Kentucky, intended parents and IVF clinics may be precluded from destroying embryos.  Taken further, either the intended parents or the IVF clinic would be required to cryogenically preserve the embryos ad inifitum even though such embryos may never be used.  A similar analysis would seem to apply to Missouri’s definition of an unborn child in its anti-abortion trigger statute. 

In some jurisdictions, embryos have been defined as the property of the intended parent(s). 

Thus, upon a divorce between the intended parents, rights to the embryos have been included within the domain of the court to distribute the unused embryos as an asset of the marriage.  And, IVF clinics routinely have patient/couples provide instructions on the disposition of the unused embryos upon death or divorce.   However, where an embryo is defined by statute as an “unborn child”, such embryos in those jurisdictions can no longer be defined as property.  Rather, in the states with trigger statutes with such all-encompassing definitions of an unborn child, the custody and support of the unborn children would almost certainly become issues in a divorce of the intended parents.    

While there is no definitive solution to these issues right now, intended parents would be better served creating and (at the very least) storing their genetic materials (eggs, sperm and embryos) in a sanctuary state – i.e., a jurisdiction where a woman’s right to obtain an abortion is codified in law and where the definition of an unborn child excludes embryos.  New York became such a sanctuary state when the NY State Legislature passed the Reproductive Health Act in 2019, which guarantees a woman’s right to obtain an abortion in the State.  With the passage of such a law, intended parents should feel some modicum of comfort that their rights to define their own family will be protected.