Why a Recent USA Court Decision Changes Everything

In this video, award-winning surrogacy lawyer and Accredited Family Law Specialist, Stephen Page talks about a recent US court decision regarding abortion and how it changes everything.

Transcript

G’day, I’m Stephen Page from Page Proven Family and Fertility Lawyers. I’m going to jump into some controversy here I want to talk about the recent US Supreme Court decision in Dobbs and Jackson Women’s Health Organisation.

You’ve probably seen this case pop up on the web. This is the case that’s overturned Roe versus Wade. Roe versus Wade was the decision in 1973, where the US Supreme Court said that there was a constitutional right to an abortion, and then set out in what circumstances it could be exercised. But ultimately, a woman could determine whether or not she had an abortion.

When the US Supreme Court made that decision in 1973, there were laws in various states in the US making abortion illegal. What we’ve known over many years is that unfortunately, abortion is too common and that too many women have died from at home abortions. The US Supreme Court in 1973, by making a constitutional right, therefore, enabled women to have safe abortions without a fear of being prosecuted.

The recent decision in Dobbs upends that. The conservative majority of the 6 3 majority of the Supreme Court has said bluntly that it’s up to the states to decide, the US states to decide whether or not there is protection for abortion.

Instead, there is no longer any constitutional protection for abortion in the US. It’s gone. You really have to look at each state to see whether or not there is protection there. In some states, for example, California, I’m told that there is clear protection. In other states, as we’ve seen in Texas, there isn’t.

You may wonder why I, as an Australian surrogacy lawyer, am talking about this, because there’s no move to change abortion law in Australia, but we are lucky in Australia that abortion throughout Australia has been decriminalised. Our surrogacy laws have made it plain, at least in Queensland now, Victoria, South Australia, Tasmania, and soon the Northern Territory, that women who are surrogates have the same rights to manage their body as other women.

So they can decide whether or not they want to have an abortion, for example, this is a good thing. The law generally has not recognised a child as being a child before the child is born, and Australian judges have said that quite bluntly.

There have been a number of attempts, primarily in Queensland, of all places, by the boyfriends or husbands of women who are pregnant to seek a court order, an injunction to stop the women from having an abortion, and judges have made comments along the lines of, well, it’s not about a moral issue, it’s about a legal issue and the legal issue is the child does not have a separate identity, and therefore there’s no ability to obtain injunction to stop the woman having an abortion.

But going to the United States is now more worrisome for Australians undertaking surrogacy. To put matters in perspective, for every child born through surrogacy in Australia, four are born overseas and the number one destination that Australians go to for surrogacy is the United States.

More Australian children are being born via surrogacy in the US than at home. Therefore, what happens in the United States with this is really close to home, and not just if your surrogate needs an abortion. In several states in the US, there has been a redefining of the law so that an embryo and let’s be clear what an embryo, how big an embryo is, smaller than the ball on this pen, you can see it with your naked eye, but it’s so tiny.

In several states, embryos are defined as humans and having human beings, the fact that they’re frozen and may not be able to be used for 10 years or so, besides the point, apparently. But it would appear that these laws that are now being rushed in throughout the United States will make US surrogacy journeys more complex, at least in some parts of the US.

Greater care needs to be taken as to where a surrogate comes from. Greater care needs to be taken about where IVF is undertaken in the US. Will IVF be able to be undertaken at all in the United States? I don’t know. I don’t know, I don’t know what the outcome is going to be, all I can say is it’s grim, and this is a moving feast, it’s changing rapidly.

There are many laws that have kicked in, particularly in the south of the US and it’s a case of wait and see. We’re just going to have to see how this pans out. It’s certainly not a case of panicking or going to the lifeboats, I certainly don’t see that.

But we have to be careful in our planning, we have to look at what are the likely political implications state by state in the US. The current chair of the ART committee of the American Bar Association, Dean Hutchinson, said that there’s no such thing as a US surrogacy journey.

He said, Well, it’s really one of 50 odd journeys. Namely, each state has its own rules about surrogacy, and they’re all different. The same is about abortion law. Each state in the US will have its own laws.

Anyone undertaking surrogacy from Australia to the US will have to look at what does the law in this place provide? What impact is it going to have on IVF? What impact is it going to have if my surrogate is pregnant, and we discover that our baby has Down syndrome and we want to have an abortion?

These things have to be figured out and not only looking at now, but the near future, what have the legislatures in each of those places, each of those states, signalled? What are the politicians saying? Where are they moving to? And what impact is that going to have on someone who is halfway through a surrogacy journey, if those changes come in?

So taking care, making sure that there’s planning in place. My view, surrogacy in the United States is still viable, it’s still feasible, it can still be very well done. It’s just got to be done with an extra layer of care and planning at the beginning.

Thank you.