Our Baby, Her Choices: The Need for Enforcement of Gestational Surrogate Contracts

• Published date: 01 January 2018
• Author: Samantha Lollo
• Date: 01 January 2018
• DOI: http://doi.org/10.1111/fcre.12330

OUR BABY, HER CHOICES: THE NEED FOR ENFORCEMENT OF

GESTATIONAL SURROGATE CONTRACTS

Samantha Lollo

1

Many women in the Unites States have difficulty getting pregnant or carrying a baby to term. As a result, many couples turn to

gestational surrogacy. Surrogacy became public in the United States in the late 1970s. In the mid 1980s, disputes began to arise

and are still prevalent today. Courts first attempted to resolve these disputes by looking for public policy guidelines. However,

the results were inconsistent. Still today, there is no uniform law. Even in states where surrogate contracts are legal, courts

have refused to order specific performance to enforce abortion or reduction provisions. However, courts should not shy away

from this. This Note proposes a federal statute mandating that gestational surrogate contracts be enforced thus protecting the

rights of intended parents.

Key Points for the Family Court Community

State law regarding the enforceability of surrogacy contracts varies widely across the United States.

Due to the varying state laws, individuals’ forum shop to find states with the most surrogate-friendly laws.

Even in states where surrogate contracts are legal, courts may not enforce every provision of the contract.

The United States is one of the few developed countries where there is no federal law on the legality of surrogacy.

Congress should enact a federal statute that mandates the legality of gestational surrogate contracts.

Keywords: Abortion; Constitutional Rights; Federal Statute; Gestational; In Vitro Fertilization; Reducing; Surrogate

Contract; and Termination.

I. INTRODUCTION

Melissa and Mike,

2

happily married, decided it was time for them to expand their family. Both

came from big families with many brothers and sisters and could not wait until they had several chil-

dren of their own. Unfortunately, after a year of trying to become pregnant, they were unsuccessful.

Fearful that something may be wrong, Melissa and Mike made an appointment with their doctor.

3

However, the appointment did not end as well as they had hoped. The doctors performed a series of

tests, which resulted in the devastating news that Melissa would not be able to become pregnant. Her

body was not capable of carrying a child.

Completely heartbroken, they did not know what to do. Their dreams of having a big family

seemed to disappear. Soon they realized they needed to accept the fact that Melissa could not become

pregnant and face their new reality. There were many other ways their family could grow.

4

Melissa

and Mike recalled their doctor suggesting surrogacy, where another woman would carry their child.

After taking time to cope, they began to research the surrogate process.

5

This gave them hope for

their future.

Fortunately for Melissa and Mike, they lived in California, where surrogate contracts were legal

and enforceable.

6

The couple, eager to have a child, immediately contacted a surrogate agency. After

completing what seemed to be an endless amount of paperwork, they were ready to move forward

with the process and find their surrogate.

7

Finally, Melissa and Mike received the exciting news that

Kelly

8

was going to help them fulfill their dreams of becoming parents.

9

While overjoyed, they had a long way to go. The surrogate contract needed to be drafted and

Melissa and Mike needed to assure that Kelly shared the same views and beliefs as they did. The

Correspondence: samlollo@yahoo.com

FAMILY COURT REVIEW, Vol. 56 No. 1, January 2018 180–194

V

C2018 Association of Family and Conciliation Courts