Surrogacy Law in North Dakota
by Christopher Dodson
Executive Director, North Dakota Catholic Conference
February 2016

The case of a California woman who may be sued if she does not abort one of the three children she is carrying has led to questions about whether the same situation could arise in North Dakota.

For those unfamiliar with the case, a man in Georgia entered into a surrogacy agreement with a woman in California. She was implanted with three embryos fertilized in vitro using the man’s sperm and another woman’s eggs. The surrogacy contract contained a provision allowing the man to demand a “reduction” in the number of fetuses. The man is now attempting to exercise that provision. The woman is refusing, saying that no matter what the contract says, she will not abort one of the children. She has filed a lawsuit contending that the surrogacy contract violates her rights of due process. The man is expected to counter-sue and argue that the contact provision is enforceable. Under California law, if the child is not aborted, the man will be the legal parent of all three children and can place any of them for adoption. The woman has stated that she would be willing to adopt the third child.

There is a similar case, also in California, in which a woman was implanted with two embryos, but one of them split, creating a set of identical twins in a set of triplets. As in the other case, the woman has been asked to abort one of the children.

In both cases, the women are getting support from pro-life advocates, who oppose any right to abort, and some pro-abortion advocates, who oppose any attempt by a third party to direct what happens to “a woman’s body.” I will write more on the irony of that scenario, but first, could this happen in North Dakota?

The short answer is: no. North Dakota law has only three statutes on the subject, but they are very confusing. Thankfully, the legislative history is clear and provides guidance on interpreting the legislation. The bottom-line is that surrogacy agreements are void in North Dakota. Although they are not illegal, such agreements have no force of law. If the situation happening in California had happened here, the man would have no legal right to insist on anything from the surrogate. Conversely, the surrogate would have no legal right to sue for renumeration from the man. The surrogate would be the legal mother of the child when he or she is born.

There is an exception to this rule. If the child was conceived in vitro from the sperm and egg of a married husband and wife and that child was implanted in another woman, that woman is considered a “gestational carrier” and would not have legal rights as a parent. This law was passed so that the biological parents would not have to adopt the child from the carrier.

Whether these gestational carrier agreements are enforceable is not clear. The law only expressly addresses the legal parentage of the children of gestational carrier agreements, not the enforceability of any other aspects of the agreement. The way I read the law, except when regarding parental determination, these agreements should be considered unenforceable,. I have, however, heard others claim that the law makes gestational carrier agreements legally enforceable.

All this may sound confusing, but it could get worse. Surrogacy advocates are pushing nationwide for commercial surrogacy laws like that in California. Much of the push for commercial surrogacy comes from the unregulated fertility industry and the homosexual community. Women’s groups have been split. Some support surrogacy as a logical extension of the reproductive rights ideology. Other groups express concern about the exploitation of women’s wombs and eggs. Still others contend that even if surrogacy is legal, it should stop short of permitting a party to demand an abortion because the “right” to abort should include the right not to abort.

This last group can’t see the irony of its position. If they insist on holding to the fiction that no other human life is involved, they have no reason to oppose a contractual demand to abort. After all, to them it is only “tissue.” Some holding this position assert that the principle of autonomy means that only the woman can decide what to do with “her body.” If that was true, however, then nothing about a surrogacy contract should be enforceable. The only consistent position of the abortion-rights crowd would be the position of North Dakota law — all surrogacy contracts are void.