With Surrogacy, Is It Still ‘My Body, My Choice’?

The promise of commercial surrogacy was straightforward: Adults who could not have children naturally could build families through this technology, and women willing to carry pregnancies could earn money to help them do so. Everyone involved, it seemed, could freely exercise choice to enter the contract.

But a court battle now moving between Alaska and California has exposed one of the hardest questions facing the future of reproductive law: Can a contract governing pregnancy ever overcome the bodily autonomy of the woman carrying the child?

The case involves McKenna West, an Alaskan nurse and single mother of two who agreed to become a gestational surrogate for a same-sex male couple from California through a commercial surrogacy agency.

At around 20 weeks of pregnancy, doctors reportedly diagnosed the baby with hypoplastic left heart syndrome (HLHS), a serious congenital heart defect. The condition requires major surgeries after birth, but it is not necessarily fatal. According to New York Presbyterian Hospital, babies with HLHS who undergo the required staged surgeries have approximately a 75% chance of surviving to age five, while those who reach their fifth birthday have around a 90% chance of surviving into adulthood.

According to West’s legal filings, the California couple sought to invoke a provision in their surrogacy agreement requiring an abortion in the event of a serious fetal abnormality. West refused, arguing that the condition was treatable. She offered to take responsibility for the child herself, allowing the intended parents to walk away from financial and parental obligations. West says the couple responded with threats of litigation seeking $250,000 if she did not comply. The couple disputes West’s account.

The couple has since succeeded in moving the dispute toward California courts, arguing that the agreement was governed by California law (a jurisdiction far more sympathetic to surrogacy arrangements than many other states).

The case has attracted attention because it exposes a tension at the heart of modern debates about reproductive autonomy. For decades, one of the central arguments in abortion law and politics has been that pregnancy is a uniquely personal experience because it takes place inside a woman’s body. The state cannot compel a woman to continue a pregnancy, it is argued — nor can any other person, least of all a man, claim authority over that decision. The slogans made the position clear: “my body my choice!” and “no uterus, no opinion!”

Surrogacy introduces a new complication. The woman carrying the pregnancy may have entered into a detailed agreement. The commissioning parents may have contributed genetic material, spent significant sums of money, and built their hopes around becoming parents. The contract may attempt to anticipate difficult medical circumstances.

But here is exactly where contracting the most primal and intimate of human acts — mothering — cannot be reduced to a simple service agreement.

The questions facing the court now provoke complicated challenges to progressive orthodoxy. If a woman’s bodily autonomy is supposedly a fundamental right that must be preserved at all costs, as Californian institutions have declared they believe, how can that same autonomy ever be surrendered by contract — especially to men?

The West case is not the only dispute raising these questions. In Ontario, Canada, a separate legal battle emerged after a surrogate mother refused to abort the 22-week-old fetus she was carrying following prenatal findings of a cleft lip, possible cleft palate, and a minor heart defect. The commissioning parents had requested the abortion via a legally worded letter, informing the woman that “although very difficult, this decision is free and informed.” The surrogate, however, refused the demand for an abortion and continued the pregnancy since the conditions were treatable. The child was later born with a cleft lip, and the parents filed a lawsuit alleging, among other claims, that the surrogate put the baby’s health at risk by negligent behavior and “failing to follow the [parents’] direction regarding decisions affecting the fetus’s medical care.”

Both cases reveal the limits of treating surrogacy as simply an extension of freedom of contract. Modern societies rightly value contracts; they allow people to make choices, plan their futures, and pursue their goals. But contracts have always had boundaries. A person cannot legally sell himself into slavery, even through a voluntary agreement. Human organs cannot simply become commodities because both buyer and seller consent. Some things are protected precisely because they involve human dignity; pregnancy should be one of them.

Indeed, the true cost of surrogacy is often borne by a party who is not even a signatory to the contract at all: the child.

A child cannot negotiate the terms of a surrogacy agreement. A child cannot consent to the circumstances of conception or determine what responsibilities adults owe her if disagreements arise. Adults may enter contracts before birth, but children must live with the consequences afterward.

Psychologists warn that early separation of infants from a parent can produce lasting harm: post-traumatic stress disorder, anxiety, attachment disorders, developmental delays, and behavioral issues in later childhood. We don’t allow puppies or kittens to be separated from their mothers until at least 8 weeks following their birth. The commodification of human newborns is striking in comparison.

That does not mean every commissioning parent has ill intent. The pain of infertility can be profound. But compassion for adults should not prevent society from asking whether every aspect of human reproduction, including a human life itself, can be successfully governed by contract.

America has long championed the idea that liberal societies should promote individual freedom. But freedom has never meant that everything can be bought, sold, or transferred. Can human life really be governed by a commercial framework? The decisions made by the courts on these radical cases will set a profound cultural precedent on that very question.

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Lois McLatchie Miller (@loismclatch) is a writer and social commentator from Great Britain, focusing on the state of free speech, faith, and family across the globe.

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