Assisted reproductive technology (ART) contracts are essential tools for establishing clear expectations between intended parents, surrogates and donors. Among the sensitive topics these agreements address is selective termination—decisions involving the reduction or termination of one or more fetuses in a multiple pregnancy due to medical concerns, genetic abnormalities or other reasons.
In general, selective termination terms can be included in ART contracts, but their enforceability varies by state and by situation. Intended parents often seek to include these provisions to better ensure alignment with the surrogate regarding decisions that could arise during pregnancy. For example, if a multiple pregnancy poses a risk to the surrogate’s health or the viability of the fetuses, intended parents may want the option to pursue selective reduction to maximize the chances of a healthy outcome.
These situations are nuanced
From a legal standpoint, including these terms in a contract clarifies intentions and helps prevent disputes if such a decision becomes necessary. However, courts are cautious about enforcing provisions that directly impact a surrogate’s bodily autonomy. Even if a contract states that the surrogate agrees to selective termination upon the intended parents’ request, a court is unlikely to compel her to undergo any procedure against her will.
Ethically, these provisions can be sensitive. Surrogates may have personal, moral or religious beliefs that affect their willingness to consent to selective reduction or termination. It is, therefore, important that these beliefs are discussed openly before finalizing any agreement.
Practically, fertility clinics and agencies often require intended parents and surrogates to agree on their views regarding selective termination before matching. Misalignment on this issue can lead to emotional distress, legal disputes or disrupted arrangements. Even when selective termination provisions are included in ART contracts, they must clearly state that the surrogate retains ultimate control over medical decisions regarding her body, as required by law in most jurisdictions.
For intended parents, understanding that ART contracts cannot override a surrogate’s fundamental rights is important. Instead, these provisions serve as a mutual understanding rather than an enforceable mandate. If significant differences exist between the intended parents and the surrogate on selective termination, it may indicate that the match is not appropriate.
Ultimately, including selective termination terms in ART contracts is possible, but their enforceability is limited by constitutional rights and ethical standards. Approaching these provisions thoughtfully helps to better ensure that all parties are protected, respected and prepared for the complex decisions that may arise during an ART journey.