Why abortion opponents are turning their attention to banning surrogacy

Anti-abortion activists and lawmakers in Texas are pressing to limit or even outlaw surrogacy, a new step toward restricting major forms of infertility treatment.

Surrogacy, though far from common, has entered the national spotlight this summer, the result of an explosive case in which an Alaska woman named McKenna West — who had been hired to carry a pregnancy for a California-based couple — traveled to Texas to seek medical care after refusing to have an abortion. She gave birth in Dallas last week.

West has sought custody of the newborn and alleges that the baby’s parents tried to force her to terminate the pregnancy after doctors discovered a fetal anomaly called hypoplastic left heart syndrome, a devastating heart condition that requires multiple surgeries after birth and that can still be fatal. The couple disputes West’s account, saying in court filings that she had agreed to terminate the pregnancy but then changed her mind and cut off contact with them. 

The newborn — whom the couple named Rumi — is now in the custody of his parents and has received surgery in Texas. Anti-abortion activists have referred to the child publicly as “baby Gabriel.”

Disputes like this are rare. Still, the case has become a lightning rod for national anti-abortion activists, including Texas Attorney General Ken Paxton, who intervened in the case on behalf of West to argue that the child must receive life-sustaining treatment in Texas, even though court records indicate his parents sought for him to receive care in California. (Paxton, who has frequently allied himself with social conservatives, is in a competitive race to represent Texas in the U.S. Senate.) West has secured representation from the Alliance Defending Freedom, a prominent anti-abortion legal group. 

Abortion opponents have argued that the case underscores a need to outlaw surrogacy entirely. 

Surrogacy, which data suggests has become more common in recent years, is typically pursued by people who cannot give birth, such as people who cannot safely carry a pregnancy and some queer couples. 

The surrogate can be hired or may provide what is called “altruistic” surrogacy, which also involves a formal contract but is not paid for the service beyond reimbursement of medical costs. The surrogate typically carries an embryo that has been fertilized and grown via in vitro fertilization. IVF has also drawn ire from abortion opponents, who argue that the embryos created in the process deserve the same legal protections as people.

Kristan Hawkins, the president of the national anti-abortion group Students for Life of America, argued on the social media platform X that surrogacy “is human trafficking with better marketing.”

In Texas, West’s case has injected new life into a burgeoning effort to outlaw the practice, which conservatives say “commodifies” children. Rep. Tom Oliverson, a Republican state representative, posted on Friday on X that he would prioritize legislation “coming after” surrogacy when the statehouse reconvenes in 2027. His office did not respond to requests for more details. 

And earlier this summer, Lt. Gov. Dan Patrick convened a state Senate committee hearing to examine possible regulations on surrogacy cases where the intended parents are foreign nationals — though its focus sometimes extended to discussing commercial surrogacy writ large.

“It’s reasonable to expect some legislation will move at least out of the Senate on this topic,” John Seago, the head of Texas Right to Life, an anti-abortion organization that opposes surrogacy in all forms, told The 19th. Seago’s organization also opposes the freezing of and destruction of embryos that are not used for pregnancy, a standard component of IVF.

His organization is in active conversation with state lawmakers about what kind of anti-surrogacy policy might be able to move forward next year. That could include a ban on commercial surrogacy, though he added that some lawmakers, even in Texas’ hyperconservative statehouse, appear more skeptical about outlawing all surrogacy arrangements. 

“It’s an evolving conversation about where the lines are,” he said. 

Surrogacy “does seem to be a topic a lot of groups are talking about and looking at,” said Amy O’Donnell, who heads Texas Alliance for Life, an anti-abortion group that has not taken a public stance on the issue. 

A representative from her organization did speak at the Texas legislature hearing to support “common sense guardrails” on surrogacy, specifically criticizing contracts that outline when a family might terminate a pregnancy. (Those terms are outlined to preclude conflict over the course of a surrogacy pregnancy but are not enforceable in a court of law.)

The Texas Public Policy Foundation, an influential right-wing think tank in the state, has also argued in favor of banning surrogacy. And the state Republican Party adopted a platform this summer saying it would support outlawing any “commercialization of human reproduction in Texas.” 

Still, it’s not clear where surrogacy falls on state lawmakers’ priority list. Seago, whose organization has pushed for some of Texas’ most sweeping abortion restrictions, said that issue will again be his group’s main focus, with surrogacy restrictions on its “second tier” of priorities. 

Legally, banning surrogacy in one state might be tricky to pull off, said Rachel Rebouché, a professor at the University of Texas at Austin and expert in reproductive health law. If Texas no longer recognizes surrogacy, residents could still work with a surrogate who lives in another state where the practice is legal. 

But across the country, major conservative organizations are mobilizing. The Heritage Foundation and the Ethics and Public Policy Center, two prominent think tanks in Washington, D.C., have published papers suggesting that surrogacy should be outlawed. In Florida, Attorney General James Uthmeier has intervened in a surrogacy case to argue that the practice violates the U.S. Constitution — an argument that, if successful, could result in the practice being outlawed across the state. 

The move to target surrogacy is a natural next step for abortion opponents who have so far failed to meaningfully restrict access to IVF, said Mary Ziegler, a law professor at the University of California, Davis. While IVF is broadly popular, Americans are often less familiar with surrogacy — and may be less motivated to protect it. 

But the arguments many are making against surrogacy, she added, are ultimately in step with the rationale for restricting or even banning IVF, too.

“What groups like Texas Right to Life are trying to do is use the fact that there’s hostility to surrogacy to build hostility to IVF — without in the meantime running up against the reality that people really support IVF,” she said. “They may never pass go if people figure out what they’re doing is also overtly risking IVF.”