The Preventing Forced Abortions Act Is Necessary: Surrogacy Contracts Should Never Be Used To Compel Abortion

A recent dispute between a surrogate mother – who refused to abort a surrogate baby she was carrying and fled to Texas – and the intended parents has drawn national attention to an important legal question: Should a surrogacy contract be used to pressure a woman into obtaining an abortion that violates her conscience?

The Preventing Forced Abortions Act of 2026 would ensure that the answer is no. The legislation would prohibit federal courts from enforcing provisions in surrogacy contracts that require a surrogate mother to obtain an abortion. It would also prevent intended parents from withholding agreed-upon compensation because a surrogate refuses a request to abort the child she is carrying. These protections are both necessary and timely. 

Surrogacy has become increasingly common in the United States. Recent reporting indicates that U.S. clinics reported more than 11,500 gestational-carrier cycles in 2023, nearly seven times the number reported in 2004 when national tracking began. As surrogacy arrangements have grown, disputes involving abortion, selective reduction, and fetal diagnoses have become more visible. That visibility has exposed a serious and concerning question—what should happen when intended parents and surrogate mothers disagree about whether a pregnancy should continue? 

In the case of McKenna West, she gave birth after refusing the intended parents’ request that she obtain an abortion following a diagnosis that the child had a serious congenital heart condition. The intended parents are reportedly seeking more than $100,000 from West for alleged breach of the surrogacy agreement.

Some defenders of these provisions argue that intended parents should not be forced into parenthood when circumstances change during a pregnancy. But that argument overlooks what is truly at stake. As the ACLJ recently explained in a letter supporting this legislation, “the agreement to carry a child as a surrogate should not reasonably be interpreted as consent to abort that child” if the intended parent or parents decide they no longer want the pregnancy to continue.

Abortion is not a routine contractual obligation. It is a profound medical procedure that ends the life of an unborn child and carries significant moral, physical, and emotional consequences for the mother. And no woman should be told that she must choose between ending the life of the child she is carrying and suffering financial consequences because she refuses.

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization returned abortion policy questions to the people and their elected representatives. But Dobbs did not resolve every legal question involving abortion. One important issue that remains is whether private parties should be allowed to use contracts to accomplish what they otherwise could not lawfully compel.

The Preventing Forced Abortions Act acknowledges the interstate nature of modern surrogacy arrangements and establishes a clear rule governing federal courts. It says that a federal court may not enforce a contractual provision requiring a woman to undergo an invasive medical procedure that ends the life of an unborn child.

Even if a court would never order a surrogate mother to undergo an abortion, substantial financial penalties can exert tremendous pressure. A surrogate who stands to lose promised compensation or faces contractual damages may be forced to choose between her conscience and her economic security.

That is precisely why the Preventing Forced Abortions Act rightly addresses the enforcement of an abortion mandate and prevents the imposition of financial penalties on a surrogate for refusing abortion. A right to refuse an abortion offers little protection if intended parents can accomplish the same objective through financial coercion. 

Every unborn child is a human life deserving protection. Contract provisions that require abortion or punish a woman for refusing one place another party’s preferences ahead of both the unborn child and the woman carrying that child. Federal courts should not be involved in enforcing such provisions, and the Preventing Forced Abortions Act addresses this problem directly.

At a time when surrogacy arrangements are becoming increasingly common, lawmakers should act now to ensure that contracts cannot be weaponized against women who choose life. The ACLJ strongly supports this legislation and urges Congress to advance and enact the Preventing Forced Abortions Act.

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