The Updating of Baby M: A Confused Jurisprudence Becomes More Confusing

Mark Strasser

Abstract


States differ in a number of respects with regard to the conditions under which surrogacy contracts are enforceable. Some states distinguish between gestational and traditional (genetic) surrogacy contracts, treating the former but not the latter as enforceable, whereas others make no such distinction. Some states distinguish between commercial and non-commercial surrogacy, whereas others make no such distinction. In short, there is a patchwork of laws regarding the conditions under which surrogacy contracts are enforceable. 

This patchwork notwithstanding, the current trend is to enforce gestational but not traditional surrogacy agreements. While commentators may debate whether that is the best policy, such a policy choice offers some clarity and predictability to both would-be commissioning couples and would-be surrogates. Nonetheless, recent decisions have modified the jurisprudence in surprising ways, sometimes creating the potential for harm to families and children.

This article first discusses two seminal cases—one addressing the enforceability of a traditional (genetic) surrogacy agreement and the other addressing the enforceability of a gestational surrogacy agreement. The article then discusses some of the ways in which the approaches to gestational and genetic surrogacy have blurred, creating the potential for harm to families and children. The article concludes that unless courts deciding surrogacy disputes take better account of some of the foreseeable results of their decisions, these courts may unwittingly bring about results that almost no one would prospectively endorse. 



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DOI: https://doi.org/10.5195/lawreview.2016.451

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