Abstract
ABSTRACT What will the practice of surrogacy contracting look like in states where abortion is significantly restricted or banned, and how will it impact the wider baby market? Using various sources of data, this article analyzes the escalating conflict between parties to surrogacy contracts and states that have either increasingly restrictive abortion laws or de facto criminalize abortion following the reversal of Roe v. Wade. Abortion and related clauses are standard terms in surrogacy contracts, which manage medical and legal risks. However, state laws that now restrict abortion during a surrogate’s pregnancy destabilize practices in states where gestational surrogacy is otherwise legal and institutionalizing. I map the overlap between states permissive of gestational surrogacy and simultaneously restrictive of abortion, then examine the consequences. How will conflict between two reproductive rights “titans” ultimately be resolved on the ground by the parties who navigate the risk and burdens of legal ambiguity and uncertainty?
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