Surrogacy contracts can pre-allocate almost everything about a pregnancy—except the one decision courts are least willing to treat as a matter of contract: whether to end it. That collision between private ordering and bodily autonomy is the crux of modern surrogacy’s hardest cases, and it is why disputes like the “termination-on-request” fight rarely end the way intended parents expect.
The Short Version
- Clauses that purport to require a surrogate to terminate a pregnancy on request are common in modern agreements, but courts and scholars broadly agree they are not specifically enforceable.
- When intended parents seek to enforce such clauses after a serious fetal diagnosis, the law typically separates parental status and financial remedies from control over the surrogate’s body.
- Recent multistate litigation illustrates the pattern: parental rights may be adjudicated to the intended parents, while any attempt to compel or penalize refusal to abort runs into constitutional, statutory, and public-policy limits.
- The repeat challenge for agencies and lawyers is ex ante counseling and risk-allocation, not ex post courtroom coercion; the durable solution is better matching, clearer counseling, and remedies that respect bodily autonomy.
What a “termination-on-request” clause can and cannot do
Termination clauses arose to manage a foreseeable but emotionally excruciating contingency: a grave fetal diagnosis mid-pregnancy. Agencies wrote language giving intended parents the right to request abortion, and some contracts go further, stating the surrogate “shall” terminate if the parents decide. In practice, that language is aspirational signaling of the parties’ shared plan, not a lever courts will pull to force a medical procedure. Legal scholarship has been clear for a decade: no court should, or realistically would, order a surrogate to undergo an abortion she refuses, and specific performance for pregnancy outcomes is off the table as a matter of public policy and bodily integrity.
That does not render the contract meaningless. Agreements still structure decision-making, reimbursements, medical logistics, and—critically—parentage. But where contracts collide with a person’s bodily autonomy, courts draw a bright line. Even in jurisdictions friendlier to comprehensive surrogacy frameworks, the remedy for breach cannot be compelling or penalizing the exercise of core bodily choices. This divide—contracts govern relationships and money; bodies remain off-limits—explains why these cases end with hybrid rulings that look, at first glance, inconsistent.
How recent litigation illustrates the fault lines
In the widely covered dispute involving a surrogate who carried a baby diagnosed with hypoplastic left heart syndrome (HLHS), the intended parents pointed to a written agreement that, according to press accounts, included a termination-upon-request provision. After the diagnosis, they sought to effectuate that clause; the surrogate declined. Litigation then sprawled across states with divergent abortion policies and surrogacy norms, producing parallel outcomes: courts recognized the intended parents’ legal status while declining any path that would force or retrospectively coerce a termination decision.
Media reports and filings depict the surrogate’s position in language familiar from prior cases: she refused to abort, describing the request as incompatible with her values and asserting a right to decide what happens to her body during pregnancy. That framing—bodily autonomy as both moral claim and legal shield—has repeatedly proven decisive on the question of compulsion. Meanwhile, separate orders addressed newborn medical care, transport, and parental decision-making—issues that live squarely in courts’ comfort zone once the child is born and parentage is adjudicated.
Why the contract cannot overcome bodily autonomy
Three strands of law converge here. First, basic contract doctrine disfavors specific performance of obligations involving personal services or bodily integrity; money damages may be available for breach, but courts will not draft and supervise a person’s body as an instrument of performance. Second, constitutional and statutory privacy and autonomy protections—though evolving after Dobbs—still render compelled abortion a nonstarter in every jurisdiction that has weighed the issue in the surrogacy posture. Third, surrogacy statutes and case law often codify or echo these limits: even when they authorize parentage orders or enforce many terms, they explicitly bar specific performance for impregnation or termination provisions.
The academic literature and practitioner guidance align: selective reduction and termination clauses may inform expectations and counseling, but they are not levers for coercion. Courts that have grappled with severe-anomaly scenarios have enforced parentage while stopping short of penalizing a surrogate for refusing a procedure she finds unconscionable, and commentators predict that any contrary attempt would be reversed on public policy grounds.
The real battlegrounds: remedies, parentage, and money
If you cannot compel performance, what remains? Parentage adjudication typically proceeds based on state law governing gestational surrogacy and genetic links; intended parents frequently prevail on legal parent status regardless of the surrogate’s refusal to terminate. That means they inherit decision-making authority for the child’s medical care after birth and financial obligations going forward. On the contract side, parties sometimes press for damages tied to alleged breaches—relocation, refusal to follow agreed medical plans, or added costs. But damages that function as a penalty for refusing an abortion are vulnerable to the same public-policy objections that defeat specific performance, and sophisticated drafters increasingly avoid liquidated damages that could be characterized that way.
The multi-jurisdictional overlay complicates everything: a surrogate’s travel to a state with different abortion or parentage rules can trigger emergency orders to secure perinatal care or to preserve jurisdiction for the child’s best interests. Even then, courts segregate issues: medical orders to hospitals, non-interference directives, and recognition of parental rights are in; orders dictating pregnancy outcomes are out.
Ethics and counseling: where prevention matters more than litigation
The durable lesson is upstream. Agencies and counsel who present termination clauses as enforceable promises do clients a disservice. The ethically defensible approach is rigorous matching and counseling—making sure the surrogate’s values around anomaly, selective reduction, and termination genuinely align with the intended parents’ before transfer. Bioethicists have long warned that paper alignment without value alignment is illusory; when the hard diagnosis arrives, the only thing that carries is trust and shared priors, not a paragraph in a contract.
Contingency planning still matters. Agreements can specify: who bears medical and travel costs if care shifts to a specialty center; how to handle second opinions; how neonatal decisions will be made and paid; and what happens if parties part ways before birth. Those provisions are both enforceable and humane. What does not work—legally or ethically—is building a threat model around compelling an abortion or exacting a punitive toll for refusing one.
A surrogate who refused to have an abortion after the biological parents requested one following a fetal heart defect diagnosis gave birth this week, setting up an increasingly bitter legal battle over surrogacy, abortion, and parental rights.
The dispute began after McKenna… pic.twitter.com/ejFBQpfiTn
— Mosheh Oinounou (@Mosheh) August 15, 2026
Practical guidance for would-be parents and surrogates
For intended parents: treat termination clauses as signals, not switches. Invest in thorough screening, explicit value discussions, and scenario planning; assume you will not be able to force a pregnancy outcome and design the relationship accordingly. For surrogates: understand the agreement’s financial and logistical expectations, but know the law’s bottom line—your body is not subject to specific performance. For both: insist that agencies and attorneys speak plainly about these limits and document aligned choices before medications begin.
Sources:
washingtonexaminer.com, tmz.com, telegraph.co.uk, youtube.com
