Contracting Pregnancy

• Author: Rachel Rebouché
• Position: Associate Dean for Research and Professor of Law, Temple University Beasley School of Law
• Pages: 1591-1641

1591

Contracting Pregnancy

Rachel Rebouché *

ABSTRACT: Several states recently have passed laws that permit and

regulate gestational surrogacy, changing course from the prohibitions that

characterized an earlier era. These statutes require mental health counseling

before pregnancy and legal representation for all parties to the contract.

Scholars and practitioners alike herald this legislation as the way forward in

protecting the interests of both intended parents and surrogates.

State law, however, may not resolve a recurrent tension over who controls

prenatal decision making in gestational surrogacy agreements. Intended

parents want authority to make decisions regarding the pregnancy. Contract

provisions cater to that desire and support the broader assumption that

parents should seek as much prenatal information as possible. Yet surrogates

have the right, by statute and as patients, to manage their prenatal care.

Analyzing the most controversial terms of surrogacy contracts—those

governing prenatal testing, prenatal behavior, and abortion—this Article

demonstrates that neither statutory rights nor contractual remedies adequately

address disputes over prenatal care. Rather, mental health professionals who

provide pre-pregnancy counseling and lawyers who draft surrogacy contracts

have greater effect on parties’ expectations and conduct. Lawyers, in

implementing surrogacy contracts, help build trust between parties that

induces compliance with otherwise unenforceable terms. When there is a

conflict between the parties, lawyers diffuse it.

* Associate Dean for Research and Professor of Law, Te mple Universi ty Beasley Sch ool of

Law. Many thanks to Aziza Ahmed, Michele Goodwin, Wendy Gordon, Craig Green, Paul

Gugliuzza, Courtney Joslin, Tom Lin, Jonathan Lipson, Jody Madeira, Linda McClain, Kimberly

Mutcherson, Dara Purvis, Jaya Ramji-Nogales and the participants of the Baby Markets

International Congress, the Family Law Scholars and Teachers Workshop, the Workshop on

Reproduction hosted by the Emory Vulnerability & the Human Condition Initiative, the Institute

for Global Law & Policy at Harvard Law School, and the Gender, Law & Policy Colloquium at

Boston University School of Law. The title of this Article draws from Gillian Hadfield’s r eference

to surrogacy as “contract pregnancy.” Gillian K. Hadfield, An Expressive Theory of Contract: From

Feminist Dilemmas to a Reconceptualization of Rational Choice in Contract Law, 146 U. PA. L. REV. 1235,

1240 (1998). For excellent research assistance and editing assistance, I thank Alexandria Bondy,

Dina Gayanova, Erica Maier, and Justin Pilchman. Thanks also to Taylor Soule, Sally Story, and

Lauren Pittman of the Iowa Law Review.

1592 IOWA LAW REVIEW [Vol. 105:1591

This Article identifies the consequences of relational contracting for surrogacy,

including shielding parties’ behavior from view and entrenching the power of

fertility agencies and brokers. It concludes by suggesting how law might

challenge the dominance of professionals and agencies by opening the fertility

market to a broader population of participants.

I.INTRODUCTION ........................................................................... 1592

II.PRENATAL SCREENING AND GENETIC ESSENTIALISM .................. 1597

III.THE REGULATION OF GESTATIONAL SURROGACY

CONTRACTS ................................................................................. 1603

A.SURROGACY CONTRACTS UNDER STATE LAW .......................... 1603

B.COUNSELING, PRENATAL SCREENING, AND DECISIONS

DURING PREGNANCY ............................................................. 1605

1.Statutory and Professional Guidance on

Prenatal Care ............................................................... 1606

2.Contractual Language on Prenatal Care and Its

Enforcement ................................................................ 1611

C.ABORTION DECISIONS ............................................................ 1614

1.Statutory and Professional Guidance on

Abortion Decisions ...................................................... 1614

2.Contractual Language on Abortion and Its

Enforcement ................................................................ 1615

IV.CONTRACTUAL ENFORCEMENT IN CLINICS AND

CONFERENCE ROOMS .................................................................. 1623

A.MENTAL HEALTH COUNSELING AND INFORMED CONSENT ....... 1625

B.LEGAL PROFESSIONALS’ MANAGEMENT OF SURROGACY

CONTRACTS .......................................................................... 1629

C.REGULATING GESTATIONAL SURROGACY ................................ 1635

V.CONCLUSION .............................................................................. 1641

I. INTRODUCTION

In the 2018 case, P.M. v. T.B., the Supreme Court of Iowa decided for

the first time that gestational surrogacy contracts are enforceable under state

law and do not violate public policy.1 The court held that invalidating

surrogacy contracts would deprive infertile couples of opportunities to raise

genetically related children and undercut surrogates’ freedom to contract.2

1. P.M. v. T.B., 907 N.W.2d 522, 535–39 (Iowa 2018).

2. Id. at 525.

2020] CONTRACTING PREGNANCY 1593

The Iowa court followed a national trend of upholding gestational

surrogacy contracts, under which surrogates become pregnant, after in vitro

fertilization (“IVF”), with children to whom they are not genetically related.3

Prenatal care and decision-making was one reason why the relationship

between the parties in P.M., who met on Craigslist, erupted in a court battle.4

The surrogate believed that the intended parents—the couple seeking the

services of a surrogate—had failed to pay for what was promised in the

contract.5 The intended parents accused the surrogate of failing to

communicate information about her pregnancy and then about the child’s

birth.6 As the relationship deteriorated, and resulted in a dispute about

parentage, the intended parents sent texts and Facebook messages to the

surrogate with racial epithets and statements such as, “we are paying you, we

hired you, and we are in charge.”7 In another exchange, an intended parent

wrote by text: “A carrier shouldn’t act like that as the doctors told me they

sho uld be sa ying yes ma’a m[.] What eve r you guy s wan t to d o.” 8 The court held

that the surrogacy contract was valid, and to decide otherwise “would deprive

infertile couples of the opportunity to raise their own biological children and

would limit the personal autonomy of women willing to serve as surrogates to

carry and deliver a baby to be raised by other loving parents.”9

In response to conflicts like those that arose in P.M., states have enacted

laws to ensure that surrogates and intended parents are a good match and to

3. As of 2017, 95 percent of contracts were for gestational surrogacy, rather than

traditional surrogacy arrangements in which the surrogate’s own egg is fertilized and thus the

surrogate is genetically related to the resulting child. SITAL KALANTRY ET AL., CORNELL INT’L

HUMAN RIGHTS: POLICY ADVOCACY CLINIC, SHOULD COMPENSATED SURROGACY BE PERMITTED OR

PROHIBITED? 5 (2017), available at https://cpb-us-e1.wpmucdn.com/blogs.cornell.edu/dist/

2/7529/files/2017/08/Kalantry_Report_2017-2cxp2jo.pdf [https://perma.cc/C7MB-8HVZ].

4. P.M., 907 N.W.2d at 525–27.

5. Id. at 527. This Article refers to “intended parents” although, in many states, an

individual may contract with a gestational surrogate.

6. Id. at 527–28. The appellant’s brief also alleges that the intended parents attempted to

block the surrogate’s husband from attending prenatal appointments: “Three days later, C.M.

demanded that T.B.’s husband no longer accompany her to doctor’s visits, disregarding T.B.’s

needs as a pregnant mother.” Defendants-Counterclaimants-Appellants’ Final Brief at *19, P.M.,

907 N.W.2d 522 (No. 17-0376), 2017 WL 10982206, at *19.

7. P.M., 907 N.W.2d at 527 (quoting a text from C.M. to T.B.). The brief submitted by

Appellants detailed communications between the parties, in which the intended father posted a

racist message slurring the surrogate’s husband as “a dirty Mexican.” Defendants-

Counterclaimants-Appellants’ Final Brief, supra note 6, at *20. The intended mother “sent an

email to T.B. and T.B.’s attorney, triggering a lengthy exchange, during which C.M. called T.B.

the ‘N’ word.” P.M., 907 N.W.2d at 527. The surrogate ceased all contact and delivered twins

(one died several days after birth) and did not inform the intended parents. Id. at 528. The

surrogate sought to invalidate the contract based on her relationship to the child and her belief

that the intended parents were not fit to assume custody, in part because of their racist remarks.

Id. at 527–28. The intended parents’ disturbing behavior would have been invisible but for the

litigation over the custody of the resulting child.

8. Id. at 527.

9. Id. at 525.