Holly Jones –

Volume 70, Issue 2, 595-620

Are babies commodities? Are they a proper subject of contract law? Many states say no, holding surrogacy contracts void as against public policy. Others, however, enforce surrogacy contracts. In the rare instances when disputes arise over selective reduction clauses and/or parentage, should the intended parent be able to enforce the contract? If so, what remedies should be available when a surrogate mother breaches the contract? This Note examines the several constitutional challenges that can be raised in opposition to the enforcement of a surrogacy contract, and concludes that the constitutional rights of the surrogate mother outweigh the contractual rights of the intended parent(s) to a surrogacy contract. Thus, surrogacy contracts should be deemed void and, therefore, unenforceable. However, this should not eliminate surrogacy arrangements if surrogate gestational mothers and intended parents: (1) fully and properly investigate each other and have the difficult conversations about what should be done in the event that multiple pregnancies result; (2) discuss what will be done in the event that fetal abnormalities are discovered; and (3) discuss what will be done if the surrogate changes her mind about giving the baby up to the intended parents. Though uncomfortable, these conversations are bound to expose differences in opinions, allowing surrogates and wishful parents to make fully informed decisions in deciding to enter into surrogacy arrangements.