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 INTL
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.

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