Would a Surrogate Parent's Right to Abortion Supersede Parental Rights?

Under the Hague Convention, Parental Rights are determined via the last shared and well-settled intents of the parents. (At least some U.S. Circuit Courts.) In Quebec, Parental rights are exercised jointly.

So, if there is a right for parents to "pursue life", would a right to abortion still remain for a surrogate parent?

  • 3
    Abortion is only possible before birth, so the only possible parent is the (surrogate) mother.
    – user4657
    Sep 3, 2021 at 1:58
  • 2
    "So, if there is a Constitutional right for parents to 'pursue life'" - you are thinking of the Declaration of Independence, not the Constitution.
    – Ryan M
    Sep 3, 2021 at 4:22
  • 3
    Does the Hague Convention or any of those other authorities contain any suggestion that parental rights even exist before birth? Sep 3, 2021 at 4:32
  • 1
    So far as I know there is no case law and there are no legislative enactments that squarely resolve the issue presented in this question (i.e. when abortion is available to a surrogate parent over the objections of the intended legal parents following birth). I believe that it would be a question of first impression in the world (primarily because surrogate parenting arrangements are infrequent and almost never give rise to this fact pattern). As others note, pre-birth, "parenting" doesn't really exist legally.
    – ohwilleke
    Sep 3, 2021 at 4:52
  • 2
    Is there any difference between the biological mother in this case and the father in any other case? Sep 3, 2021 at 12:12

1 Answer 1


Pursuant to well-established law in the US, the person carrying the fetus (conventionally, the mother) has the right to an abortion. Doing so might be a breach of contract. Some jurisdictions flat out ban surrogacy contracts (Arizona, D.C), perhaps even penalizes (Michigan, NY), or declares void (Indiana, Kentucky, Louisiana, Nebraska). In California, surrogacy contracts are legal and enforceable. One possible challenging scenario is that the mother refuses a requested abortion, the other is that one or both of the intended parents seek to block the mother from getting an abortion. The former case in the case of Melissa Cook, where there was an attempt made to reduce the number of pregnancies from three – Cook carried the fetuses to term despite a contrary request from the intended parents (no action was filed to attempt to force an abortion). There has apparently been no attempted case to force a mother to carry a fetus to terms because of a contract (i.e. order for specific enforcement).

Under present US law, the woman carrying the fetus has the exclusive right to choose to terminate a pregnancy. No statutes or case law suggest that a surrogacy contract will override that right, and some laws explicitly deny the ability to force a mother to have an abortion (Utah Code Ann. §78B-15-808(2) & (3), Tex. Fam. Code Ann. §160.754(g), Fla. Stat. Ann. §63-213(3)(b)). A mother could be sued for breach of contract if she terminates a pregnancy – the intended parents may have suffered a financial loss from that decision, but that depends on the state.

  • This is amazing, exactly what I was looking for. Thank you! Sep 8, 2021 at 1:26

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