Contractual Chaos: State-by-State Disparities and the Search for Equitable Enforcement of Surrogacy Agreements.

• Author: Gonsenhauser, Sarah

"Surrogacy contracts have been left in a state of chaotic stagnancy, with vastly differing levels of enforcement as a product of state discretion with no signs of uniformity. Surrogacy laws across the states, if they exist in a given state at all, occupy a spectrum of enforcement with the most polarized of ends, and no sense of uniformity or cohesion. As a result of the total lack of consistency within the state system, there is a massive hurdle to overcome for couples wishing to have a child using this process." (1)

1. Introduction

   The choice to have a child is one of the most important decisions an individual or couple can make. (2) As a matter of public policy and common-law tradition, courts have historically held in favor of promoting procreation and conferring upon citizens the freedom to decide how to raise their children. (3) Throughout American history, Congress has passed legislation seeking to reinforce the significance of the family unit by providing benefits to people who are married and have children. (4)

   While Congress has strengthened the family unit in many ways, both the legislature and judiciary have reinforced heteronormative societal attitudes by systematically excluding certain individuals from such benefits and protections. (5) The exceptions in legal protection for married couples and families largely stem from preconceived notions about how and with whom people should have children. (6) Although Obergefell v. Hodges was a landmark victory for the LGBTQIA+ movement, many same-sex and nonbinary couples still face challenges in family planning. (7) While some of these barriers flow from deeply held prejudices about who should have children, the barriers are also a result of rapidly evolving procreative medical advancements. (8) As an increasing number of people faced infertility and other barriers to natural reproduction, the medical field adapted by creating new ways--such as in vitro fertilization, sperm donation, and surrogacy--to provide infertile, same-sex, and nonbinary couples with more opportunities to have biological children. (9) Despite rapidly evolving medical technology, Congress's reluctance to keep up with newly developed reproductive practices has resulted in many couples remaining unable to have children through these avenues. (10)

   Moreover, couples seeking to contract with surrogates or gestational carriers (GCs) are often met with myriad challenges due to uncertainty in the law. (11) Laws governing surrogacy contracts in the United States are controlled at the state level. (12) This governance structure means there is little to no consistency between states regarding the status of surrogacy and GC agreements. (13) This lack of consistency gives rise to a host of issues surrounding presumptions of parentage at birth, custody arrangements, and adoption. (14) Many states have completely banned surrogacy contracts due to public policy concerns. (15) While some states have more lenient laws, other states merely have minimal guidance. (16) Some states have enacted statutes that impose civil penalties on parties to commercial surrogacy contracts, whereas others have indicated that they will allow surrogacy agreements as long as the parties freely enter into the contract. (17) The lack of federal regulation creates uncertainty for many intended parents (IPs) for their plans for having children. (18)

   This Note examines surrogacy laws in three key states: New York, Massachusetts, and California. (19) While these states are generally considered some of the most socially progressive in the country, their surrogacy laws are also among the most disparate. (20) In using these three states as a sample, this Note illustrates the wide spectrum of surrogacy laws and enforcement of surrogacy agreements. (21) New York, Massachusetts, and California have each either adopted limited statutory protections, failed to provide guidance whatsoever, or legalized some form of surrogacy through case law. (22) Lastly, this Note advocates for federal regulation of surrogacy and GC contracts in the United States--following the intent doctrine--to eradicate many of the barriers that IPs currently face. (23)

2. HISTORY

   1. Regulation of Marriage and Families in the United States

      From the founding of this country, the United States considered marriage to be a revered institution. (24) Cultural beliefs and societal attitudes surrounding marriage have shaped legislation throughout U.S. history. (25) As a result, laws traditionally favored heteronormative couples by allowing them to enjoy the protections and benefits of marriage. (26) A byproduct of this favoring led to the exclusion of LGBTQIA+ couples from these benefits and protections, including tax deductions, inheritance rights, and insurance benefits. (27)

      Throughout the twentieth century, the Supreme Court reformed the law through its decisions to allow more people to enjoy marital benefits. (28) Before Obergefell in 2015, many states did not recognize marriages between same-sex couples. (29) While a same-sex couple could enjoy married legal status in Massachusetts or Connecticut, other states would not recognize the marriage. (30) Additionally, these married couples were not entitled to federal married legal status. (31) While Obergefell solved many of these problems by legalizing samesex marriage federally, same-sex and other LGBTQIA+ individuals still face barriers to equal treatment in many facets of married life--namely procreation. (32)

   2. Advancements in Medical Technology and Challenges for LGBTQIA+ Individuals

      As an increasing number of couples face reproductive challenges, the medical field has adapted by creating assisted reproductive technology (ART) that aid people in conceiving children. (33) One such ART achieves conception by implanting genetic material from the donor father or both parents into the surrogate mother. (34) Surrogacy gained immense popularity in the late 20th century, as it not only assisted heteronormative couples facing fertility challenges, but also served as a viable method for same-sex couples to conceive biological children of their own. (35)

      Though surrogacy serves as a solution for many people, the failure of legislatures to consistently address the enforceability of agreements between IPs and surrogates has created problems. (36) As states have historically regulated family law at the state level, couples seeking to conceive using a surrogate face tremendous uncertainty. (37) If couples contract with surrogates in different states, they are unfortunately left having to guess whether a court will enforce the agreement if the surrogate mother decides to keep the baby. (38) Even in situations where the IPs and surrogate reside in the same state, the lack of state legislation in some states creates a confusing legal landscape that IPs and surrogates struggle to navigate. (39)

      LGBTQIA+ couples--particularly same-sex male couples--face unique challenges due to the uncertainty of enforcement of surrogacy agreements. (40) While same-sex female couples also deal with difficulties when using ART, lesbian couples are generally not inhibited by the inability to gestate and are not subject to intrusion by a third party asserting parental rights to their baby. (41) Same-sex male couples, however, are unable to carry a child without the involvement of a surrogate or GC. (42) While sperm donors legally agree to sever their rights to any children born using their genetic material, there is no symmetrical protection for gay fathers seeking to have a child using a surrogate because of the biological differences between males and females. (43) As only individuals with a uterus can carry a child, same-sex male fathers seeking to reproduce biologically will always require a surrogate who must legally relinquish parental rights at birth. (44) Because states do not universally enforce surrogacy and GC agreements, this inconsistency opens the door for birth mothers to renege and decide to keep the baby. (45) Some states' emphasis on gestation and the connection between birth mother and baby leaves many same-sex male fathers in a fragile and uncertain position regarding the right to their intended children. (46)

   3. Surrogacy and GC Agreements

      Both surrogate and GC agreements involve IPs contracting with a female person to carry a child to term--regardless of the fetus's biological relationship to her--and relinquish parental rights at birth. (47) IPs, with the intent to receive parental rights at birth, utilize a surrogate to conceive a biological child. (48) The surrogate is the woman who carries the child and is also referred to as the birth mother. (49) In a surrogacy arrangement, the surrogate has a genetic tie to the baby. (50) By contrast, in a GC agreement, the GC has no genetic tie to the child. (51)

      The difference between altruistic and commercial surrogacy raises various policy concerns, such as possible exploitation of lower income women, commodification of reproduction, and equal protection issues. (52) In an altruistic surrogacy agreement, the IPs compensate the surrogate for her medical and living expenses but do not provide compensation beyond costs associated with the pregnancy. (53) In commercial surrogacy agreements, the IPs provide the surrogate mother with compensation beyond her medical and living expenses, essentially allowing her to profit from the pregnancy. (54)

   4. Public Policy Concerns

      Many theorists consider commercial surrogacy agreements void as against public policy because of potential inequalities in bargaining power between the IPs and surrogate mother. (55) These concerns stem from traditional perceptions of who would have the resources to pay another person to carry their child and, conversely, what type of person would be willing to grow another couple's baby in their womb. (56) Further, because states want to avoid facilitating a "baby buying" industry, many have either refused to enact...