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In Defense of Enforcement of the Surrogate Contract: a Reply to Field

Published online by Cambridge University Press:  17 May 2016

John Lawrence Hill
John Lawrence Hill*
Affiliation:
Visiting Assistant Professor of Law, Illinois Institute of Technology, Kent School of Law, Chicago, Illinois 60616
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Extract

In deciding whether and to what extent surrogate parenting contracts should be recognized, states are faced with three legislative options. First, they may criminalize surrogacy, in effect punishing those who enter into or facilitate surrogate contracts by fine or imprisonment. Second, states may adopt the nonenforcement option. Under this approach, surrogate contracts are not subject to criminal sanction, but neither will they be enforced. The legal effect of such a rule is to leave the surrogate free to carry through with the contract or to refuse to relinquish custody of the child born of the arrangement as she wishes. In the event the surrogate decides that she wishes to keep the baby, the courts will decide the issue of parental rights in accordance with the best interests test much like that which is employed in divorce cases. This was the approach taken in In the Matter of Baby “M” (537 A.2d 1225 (N.J. 1988)). Finally, the third legislative alternative is regulation and enforcement of surrogate contracts. This would have the effect of requiring the surrogate to turn over the child she has borne for the intended parents even where she has changed her mind, a la Mary Beth Whitehead, and wishes to retain custody of the child.

Type
Further Commentaries
Information
Politics and the Life Sciences , Volume 9 , Issue 2 , February 1991 , pp. 253 - 261
Copyright
Copyright © Association for Politics and the Life Sciences 

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