Are surrogate mother contracts enforceable?
Are surrogate mother contracts enforceable?

Summary/Abstract: The concept of surrogate motherhood is accompanied by a great deal of moral and ethical controversy. U.S. courts have questioned the validity of surrogacy contracts based upon the prohibition of “baby selling” and because of public policy considerations and many of them held these contracts unenforceable. Even so, declaring surrogate contracts illegal or contrary to public policy is not effective. Courts and many commentators do not view a surrogate mother contract as a contract for services and do not recognize that surrogacy provides an ideal reproductive alternative to many infertile couples. Notwithstanding the sufficient support to find that the surrogate mother contracts are valid, the enforceability of these contracts remains questionable. Many factors empede the enforcement, including the unique nature of the contract, the limited control the surrogate has over performance of the bargain, and the emotional nature of transaction. The enforcement of surrogate mother contracts also presents unanswerable remedial questions. Moreover, whether analyzed by U.S. law, Jewish law or by English law, surrogate motherhood dramatically alters society norms, creates many differing legal viewpoints and presents the same moral and ethical problem that contributes to the unenforceability of the contracts: a child born by a surrogate has a bond with both the infertile couple and the surrogate mother. Legislation, carefully drafted with an awareness of the impact with future medical technology may have on the concept of surrogate motherhood, is necessary that will respect procreative liberty, protect parties to surrogate contracts from exploitation, and effectively guide the courts in adjudicating surrogacy related disputes. Legislation ignoring surrogate mother contracts endangers the individual in whom society has the greatest interest in protecting, the unborn child.

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