Gestational Surrogacy Contract Terms Under the 2017 Uniform Parentage Act

Child and Family Law Journal Child and Family Law Journal

Volume 9 Issue 1 Article 1

5-2021

Gestational Surrogacy Contract Terms Under the 2017 Uniform Gestational Surrogacy Contract Terms Under the 2017 Uniform

Parentage Act Parentage Act

Jhonell Campbell

University of Maryland

Follow this and additional works at: https://lawpublications.barry.edu/c<j

Part of the Contracts Commons, Family Law Commons, Juvenile Law Commons, Legislation

Commons, and the Other Law Commons

Recommended Citation Recommended Citation

Campbell, Jhonell (2021) "Gestational Surrogacy Contract Terms Under the 2017 Uniform Parentage Act,"

Child and Family Law Journal

: Vol. 9 : Iss. 1 , Article 1.

Available at: https://lawpublications.barry.edu/c<j/vol9/iss1/1

This Article is brought to you for free and open access by Digital Commons @ Barry Law. It has been accepted for

inclusion in Child and Family Law Journal by an authorized editor of Digital Commons @ Barry Law.

Gestational Surrogacy Contract Terms Under the 2017 Uniform Parentage Act Gestational Surrogacy Contract Terms Under the 2017 Uniform Parentage Act

Cover Page Footnote Cover Page Footnote

J.D., University of Maryland School of Law, 2019. I would like to thank Professor Martha Ertman who

inspired me to pursue this topic. I would also like to thank my mother, Tabitha Harvey, and grandmother,

Olive Harvey, for their endless support throughout this process.

This article is available in Child and Family Law Journal: https://lawpublications.barry.edu/c<j/vol9/iss1/1



 1

Gestational Surrogacy Contract Terms Under the

2017 Uniform Parentage Act

Jhonell Campbell

I. Introduction ................................................................................. 3

II. Gestational Surrogacy in the United States ................................ 6

A. Overview of Gestational Surrogacy in the United States ....... 6

B. The Law of Surrogacy ............................................................ 7

1. Case Law ............................................................................. 7

i. In Re Baby M (1988) ........................................................ 7

ii. Johnson v. Calvert (1993) ................................................ 9

2. Constitutional Cases Influencing Surrogacy Agreements . 11

3. Statutes Governing Surrogacy Agreements ....................... 15

III. The UPA and the Enforceability of Gestational Surrogacy

Contract Provisions ....................................................................... 16

A. The Uniform Parentage Act ................................................. 16

1. Pre-UPA and the Uniform Parentage Act of 1973 ............ 16

2. The Uniform Parentage Act of 2002 ................................. 17

3. Uniform Parentage Act of 2017......................................... 18

B. Enforceability of Gestational Surrogacy Contract Provisions

under the 2017 Uniform Parentage Act ..................................... 19

1. Overview of Gestational Surrogacy Agreements .............. 20

2. Behavior Provisions ........................................................... 20

J.D., University of Maryland School of Law, 2019. I would like to thank Professor

Martha Ertman who inspired me to pursue this topic. I would also like to thank my

mother, Tabitha Harvey, and grandmother, Olive Harvey, for their endless support

throughout this process.

2 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

3. Finance Provisions ............................................................. 22

i. Compensation & Reimbursements ................................. 22

ii. Health Insurance ............................................................ 24

4. Abortion and Selective Reduction Provisions ................... 25

5. Provisions Regarding the Separation, Divorce,

Incapacitation, or Death of Intended Parents ......................... 27

i. Separation or Divorce ..................................................... 28

ii. Incapacitation or Death .................................................. 29

IV. Conclusion .............................................................................. 30

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 3

INTRODUCTION

Gestational surrogacy provides a pathway to parenthood for those

who otherwise may not be able to conceive children. At the core of the

gestational surrogacy process are contracts, which provide predictability

and security between the parties in a gestational surrogacy arrangement

by defining the parties’ rights, responsibilities, and expectations. When

contracts are breached, the parties rely upon the courts and other

enforcement mechanisms to enforce them. However, surrogacy

agreements are not enforceable in all United States (“U.S.”)

jurisdictions, leaving contracting parties vulnerable to unexpected

outcomes. The Uniform Parentage Act (“UPA”), updated in 2017 from

its earlier 1973 and 2002 versions, attempts to provide states with a

uniform statutory framework to govern the surrogacy process.

This

paper evaluates the enforceability of gestational surrogacy agreement

provisions, based upon current drafting practices under the UPA (2017),

constitutional law, and contract law principles. Based on this evaluation,

this paper also recommends changes to current drafting practices to

ensure the enforceability of gestational surrogacy agreements.

Behind every gestational surrogacy arrangement are people who

desire to conceive children of their own or for others. A variety of

contracts facilitate the creation of this new family. The surrogacy process

may involve contracts between the surrogate, surrogacy agency, fertility

clinic, gamete providers, intended parents, and attorneys.

These

contracts cover issues such as payment to the donor, surrogate, and

agency; waiver of claims regarding medical procedures, like in vitro

fertilization (“IVF”); and the responsibilities, parental rights, and duties

pertaining to any child born through surrogacy.

The contract between

the intended parents and the gestational surrogate is known as a

surrogacy agreement, which will be the focus of this paper.

Contracts govern the relationship between intended parents and

surrogates by balancing the interests and safety of gestational carriers,

intended parents, and the children conceived. An intended parent is a

person who commissions a woman to carry a child and becomes the legal

parent of the child. A gestational surrogate is a woman who agrees to

become pregnant, using donor sperm and egg, through IVF.

See generally, Uniform Parentage Act (2017).

See generally Joseph F. Morrissey, Surrogacy: The Process, The Law, and The

Contracts, 51 W

ILLAMETTE L. REV. 459, 472-76 (2015).

Id.

See Uniform Parentage Act § 801(2) (2017).

4 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

Gestational surrogacy is one of two forms of surrogacy. The other

form of surrogacy is referred to as “traditional” surrogacy. In a

traditional surrogacy arrangement, conception occurs through alternative

insemination with sperm from the intended parent, meaning that the

surrogate is also the child’s genetic mother.

The surrogate’s egg is

usually fertilized using alternative insemination.

With alternative

insemination, a doctor uses a syringe to inseminate the surrogate with the

sperm of the intended father or donor.

Traditional surrogacy results in a

child who is genetically related to the surrogate and is usually the

husband of the intended mother.

In contrast, a child born of gestational surrogacy is not genetically

related to the surrogate. An egg—provided by the intended mother or a

third party—is fertilized with the sperm of the intended father or donor

through IVF.

The fertilized egg creates an embryo, which is then

transferred to the surrogate’s uterus.

Despite the higher costs and

technical complexity of gestational surrogacy, it is the most common

form of surrogacy practiced in the U.S. and best protects the parenthood

claims of the intended parents because the child is not genetically related

to the surrogate.

Generally, family law presumes that genetic parents have custodial

and parental rights.

Moreover, family law presumes that a husband is

the legal father of a child born to his wife.

These two presumptions

create problems for traditional surrogacy arrangements, in that they treat

the surrogate as the legal mother and the surrogate’s husband as the legal

father. For this reason, traditional surrogacy is rarely practiced in the

U.S.

States are divided on how to govern gestational surrogacy. This

division is due, in part, to the controversial nature of surrogacy. Since

surrogacy agreements are often interstate transactions, parties frequently

forum shop to take advantage of favorable laws. The UPA (revised in

2000 and amended 2002 to add provisions regarding surrogacy) sought

to prevent forum shopping and ensure consistent results across state

See Morrissey, supra note 2, at 473-476.

Id.

See MARTHA M. ERTMAN, LOVE’S PROMISES: HOW FORMAL AND INFORMAL

CONTRACTS SHAPE ALL KINDS OF FAMILIES 29 (Beacon Press, 2015).

See generally Morrissey, supra note 2, at 471.

Id.

See Ertman, supra note 10, at 29.

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 5

lines.

However, states were slow to enact the UPA (2002).

As of July

2017, only two states

enacted the surrogacy provisions of the UPA

(2002). The Uniform Law Commission (“ULC”)

revised the UPA

again in 2017 to reflect developments in the area of surrogacy.

The

process outlined in the UPA (2017) for ensuring legal enforceability of

gestational surrogacy agreements is less burdensome for intended parents

and surrogates, and better reflects how gestational surrogacy is currently

practiced.

As of this writing, California, Vermont, and Washington

have enacted the UPA (2017), and Pennsylvania, Connecticut, and

Rhode Island are considering enactment.

Modeled from existing state statutes,

the UPA (2017) could be a

better solution for a uniform statutory framework that promotes the legal

recognition of surrogacy agreements. The new statutory framework

attempts to conform to current surrogacy practices

and quell the

controversy surrounding surrogacy. In light of the changes to the UPA,

attorneys should consider augmenting their drafting practices to ensure

conformity with the UPA (2017). Section I of this paper discusses the

factual and legal development of surrogacy in the U.S. Section II

provides an overview of the 1973 version of the UPA, and its 2002 and

2017 revisions. Section II also evaluates the enforceability of standard

gestational surrogacy agreement provisions under the UPA (2017) by

considering potential statutory and constitutional challenges, as well as

contract law defenses against enforceability. Section II provides

recommendations to practitioners, based on the UPA (2017)’s statutory

See generally Uniform Parentage Act (2002).

See Uniform Parentage Act, art. 8 cmt. (2017).

As of July 2017, only Texas and Utah have enacted surrogacy provisions based on

Article 8 of the Uniform Parentage Act (2002). See id.

The Uniform Law Commission is a group of practicing lawyers, judges,

legislators, and law professors who have been appointed by state governments to provide

states with non-partisan legislation that brings clarity and uniformity to areas of state

statutory law. About Us, ULC, https://www.uniformlaws.org/aboutulc/overview (last

visited Apr. 27, 2021).

See generally Uniform Parentage Act § 801-18 (2017).

Id.

Parentage Act, ULC https://www.uniformlaws.org/committees/community-

home?CommunityKey=c4f37d2d-4d20-4be0-8256-22dd73af068f, (last visited Mar. 11,

2019).

The gestational surrogacy provisions of UPA (2017) were modeled on Delaware,

Maine, Nevada, New Hampshire, District of Columbia, and Illinois surrogacy statutes.

See Uniform Parentage Act, art. 8 cmt. (2017).

In a number of states, intended parents are immediately recognized as the legal

parents of a child resulting from a surrogacy arrangement as long as the surrogacy

agreement conforms to the state’s statutory requirements. See, e.g., D.C. CODE § 16-404

and C

AL. FAM. CODE § 7962(i) (West 2018).

6 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

scheme, about changes to consider in the drafting process to comply with

the most recent changes to the UPA. Lastly, Section III summarizes

those recommendations.

II.

GESTATIONAL SURROGACY IN THE UNITED STATES

Changes to the UPA are a reflection, in part, of ethnological and

legal developments in the area of surrogacy. Section II.A. of this paper

discusses technological developments in assisted reproductive

technology (“ART”) and how those developments led to the emergence

of gestational surrogacy in the U.S. Section I. B. provides an overview of

the evolution of relevant case and statutory law and discusses current

state approaches to the enforcement and regulation of surrogacy

agreements.

A. Overview of Gestational Surrogacy in the United States

Before discussing the statutes that govern the practice of surrogacy,

it is important to understand the history of surrogacy in the U.S.

Surrogacies in the U.S. were “traditional” until the 1990s when legal

rules and IVF technology developed to their current state.

Noel Keane

was one of the first well-known lawyers to negotiate and draft traditional

surrogacy agreements in the U.S.

In the 1970s, he founded the

Infertility Centers to facilitate surrogacy arrangements.

Mr. Keane

arranged approximately 600 births,

earning him the title of “father of

surrogacy.”

In fact, Mr. Keane was the lawyer who negotiated the

surrogacy agreement for the traditional surrogacy arrangement at issue in

the landmark case of In re Baby M.

The case of Baby M was a setback

in the social and legal acceptance of surrogacy and, as a result of the

case, many states outlawed the practice of traditional surrogacy.

The 1978 birth of Louise Joy Brown paved the way for gestational

surrogacy.

Louise was conceived using the fertilized egg and sperm of

her mother and father, a married couple.

After joining the egg with the

See generally Ertman, supra note 10, at 27-9.

Lawrence Van Gelder, Noel Keane, 58, Lawyer in Surrogate Mother Cases, is

Dead, N.Y

TIMES (Jan. 28. 1997), http://www.nytimes.com/1997/01/28/nyregion/noel-

keane-58-lawyer-in-surrogate-mother-cases-is-dead.html.

See Ertman, supra note 10, at 28.

Gelder, supra note 24.

See Ertman, supra note 10, at 28.

Id.; See generally In re Baby M, 537 A.2d 1227 (N.J. 1988).

See Ertman, supra note 10, at 29.

Id.

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 7

sperm in a lab, doctors implanted the embryo into her mother’s uterus.

Although Louise’s birth was not the result of a surrogacy arrangement, it

did demonstrate the feasibility of IVF—the procedure performed prior to

implanting a fertilized egg into the gestational carrier’s uterus. The first

successful pregnancy using a donated egg occurred in 1983.

Just two

years later, in 1985, the first child was born to a gestational surrogate.

Although surrogacy was rare just a few decades ago, the global

surrogacy industry is now worth up to six billion dollars.

Between 1999

and 2013, there were 18,400 infants born in the U.S. as a result of

surrogacy arrangements.

B. The Law of Surrogacy

Case, constitutional, and statutory law has influenced the contents

and enforceability of surrogacy agreements. These legal developments

have all shaped today’s practice of surrogacy in the U.S.

1. Case Law

i. In Re Baby M (1988)

Baby M, the landmark case on traditional surrogacy, involved two

couples: the Sterns and the Whiteheads.

The Sterns and Whiteheads

entered into a surrogacy contract in 1985.

The contract provided that

the surrogate, Mrs. Whitehead, would become pregnant using her egg

and Dr. William Stern’s sperm.

This resulted in a child that was

genetically related to both the surrogate and the intended father. After

giving birth to the child, Mrs. Whitehead was emotionally attached to the

child and refused to relinquish custody of the child.

The Sterns filed for

Id.

See Lynn M. Squillace, Too Much of a Good Thing: Toward a Regulated Market

in Human Eggs, 1 J.

HEALTH & BIOMEDICAL L. 135, 137 (2005).

Alyssa James, Gestational Surrogacy Agreements: Why Indiana Should Honor

Them and What Physicians Should Know Until They Do, 10 I

ND. HEALTH L. REV. 175,

179 (2013).

Seema Mohapatra, Achieving Reproductive Justice in the International Surrogacy

Market, 21 A

NNALS HEALTH L.

191, 193 (2012).

Key Findings: Use of Gestational Carriers in the United States, CDC,

https://www.cdc.gov/art/key-findings/gestational-carriers.html (last visited Aug. 13,

2018).

In In re Baby M, 537 A.2d 1227, 1235-38 (N.J. 1988).

Id.

Id. at 1236-37.

8 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

custody of the child and sought to enforce the surrogacy contract

provision that terminated Mrs. Whitehead’s parental rights and duties,

and made Dr. Elizabeth Stern the child’s other legal parent.

The New

Jersey Supreme Court refused to enforce the surrogacy contract,

reasoning that it conflicted with adoption statutes, baby-selling statutes,

and public policy.

The Court then determined the custodial rights.

Regarding custody, the Court grounded its analysis on what it

believed would be in the best interests of the child.

The “best interest of

the child” analysis is fundamental to family law disputes involving

children. Courts employ “best interests” reasoning to make custody

decisions with the goal of fostering the child’s needs. In Baby M, this

analysis led to the Court awarding custody to the intended father and his

wife.

However, New Jersey law required a showing of parental

unfitness or abandonment before terminating the natural mother’s

parental rights, who in this case was also the surrogate.

Since that

showing was not made, the Court restored the surrogate’s parental

rights.

The result in Baby M demonstrates the court’s attempt to balance

the interests of the child and the rights of the genetic parents. However,

the outcome fell short of what each party contracted for and the relief

requested. The legal, moral, and emotional complexities of the traditional

surrogacy process, as demonstrated in Baby M, propelled legal

prohibitions of traditional surrogacy.

In recent years, some states have

changed their laws to now allow traditional surrogacy;

however, many

states still criminalize or otherwise prohibit traditional surrogacy.

The

legal hostility following Baby M, coupled with technological

Id. at 1237-38.

In re Baby M, 537 A.2d at 1240.

Id.

Id. at 1238-39.

Id.

Id. at 1234-35.

Ertman, supra note 10, at 29.

For example, Washington, D.C. repealed section 16-402 in 2017, which banned

and criminalized surrogacy contracts. D.C.

CODE ANN. § 16-402, repealed by

Collaborative Reproduction Amendment Act of 2016. The new Act streamlines the

surrogacy process for intended parents by allowing them to become the legal parents of a

child resulting from a surrogacy agreement without having to initiate subsequent

adoption proceedings. D.C. CODE ANN. § 16-404 (West 2017).

See, e.g., KY REV. STAT. ANN. § 199.590(4) (West 2021); N.D. CENT. CODE §14-

18-05 (West 2019).

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 9

advancements in the medical field, has rendered traditional surrogacy

nearly obsolete in the U.S.

ii. Johnson v. Calvert (1993)

Just a few years after Baby M, a California case created a safe

harbor for people to enter and enforce surrogacy agreements. Johnson v.

Calvert represents the first time a high state court enforced a surrogacy

contract.

In 1990, Mark and Crispina Calvert entered into a gestational

surrogacy contract with Anna Johnson.

The contract provided that the

fertilized egg and sperm of the Calverts would be implanted into Ms.

Johnson and that Ms. Johnson would relinquish all parental rights to the

Calverts.

The relationship deteriorated after the Calverts discovered

that Ms. Johnson had several stillbirths and miscarriages and that the

Calverts had not obtained life insurance for Ms. Johnson, as promised.

Ms. Johnson filed suit seeking to be declared the child’s mother, and the

Calverts countersued to be declared the legal parents.

The facts diverged from Baby M

in one crucial respect: the child

in Johnson v. Calvert had no genetic relation to the surrogate.

The

Calverts attempted to assert their parental rights based on their genetic

relation to the child, while Ms. Johnson sought to assert her parental

rights based upon the fact that she gave birth to the child.

Under

California Civil Code section 7003, a woman could establish maternity

by proving that she is genetically related to the child or gave birth to the

child.

In traditional surrogacy cases, one woman both gestates and

provides the egg, however, here, those two roles were split between

Anna Johnson and Crispina Calvert. The court ultimately employed the

intended parents test—a contractual test—which provides that when the

person who is genetically related to the child, and the person who gave

Ertman, supra note 10, at 29.

Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).

Id. at 778.

Id.

See generally In re Baby M, 537 A.2d 1227 (N.J. 1988).

Johnson, 851 P.2d at 778.

Id. at 779.

Id. at 795 (Kennard, J., dissenting). The now repealed statute provided that man

may prove he is a child’s natural father through genetic marker evidence derived from

blood testing. Id. The California statute also “permit[ted] a woman to establish that she is

‘the natural mother’ of a child by “proof of . . . having given birth to the child.” Id.

10 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

birth to the child are two different people, the natural mother is the

person who intended to procreate the child.

The court’s response to a wide range of public and social policy

arguments presented against the enforcement of surrogacy agreements is

as important as its holding. The surrogate in Johnson argued that

gestational surrogacy contracts are unenforceable because they: (1)

involve a payment for a child and a pre-birth waiver of parental rights,

prohibited under California adoption laws; (2) violate the constitutional

prohibition on involuntary servitude; (3) exploit women of lower

socioeconomic status; and (4) may result in the commodification of

children.

Regarding the prohibition on payments in adoption, the court

quickly dismissed that issue by noting significant differences between

surrogacy and adoption.

For example, the court reasoned, a gestational

surrogate is not the genetic mother of the child she carries, and therefore

does not waive parental rights by signing a surrogacy agreement.

Additionally, the court viewed payments to gestational surrogates as

compensation for their services and not for relinquishing the child.

The court likewise rejected the surrogate’s claim regarding

involuntary servitude, since “extrinsic evidence of coercion or duress

were utterly lacking.”

The contract at issue did include a provision

giving the intended parents the right to make decisions regarding the

abortion of the fetus.

However, to the extent that the contract’s

provisions on abortion would force the surrogate to bear or abort a

child—a potential form of involuntary servitude—the court did not rule

on the issue because the contract also provided that it was within the sole

discretion of the surrogate to abort or not to abort the fetus.

Abortion

provisions, such as the one discussed in Johnson, are frequently used in

surrogacy contracts.

Abortion provisions may be disconcerting as they

generally provide that the intended parents may request for the

pregnancy to be terminated or the number of fetuses to be reduced.

However, the abortion provision in the contract at issue in Johnson

Johnson, 851 P.2d at 782.

Id. at 783-85.

Id. at 783–84.

Id.

Johnson, 851 P.2d at 782.

Id.

This information is based on a review of sample surrogacy agreements, including

one provided by Jennifer Fairfax, Esquire.

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 11

included a clause that stated, ‘[a]ll parties understand that a pregnant

woman has the absolute right to abort or not abort any fetus she is

carrying. Any promise to the contrary is unenforceable.’

The

constitutional implications of abortion provisions are further discussed

below.

The court then addressed the appellant’s argument that surrogacy

contracts tend to exploit women of lower socioeconomic status. The

court acknowledged that women of lower-socioeconomic status are more

likely to enter into surrogacy agreements.

However, the court was not

persuaded that surrogacy contracts influenced women to pursue

surrogacy any less than they might be persuaded to accept an otherwise

low paying job.

The court also rejected the argument that surrogacy

exploits women by pointing out the lack of data to support this

proposition.

Another paramount concern addressed by the court is the

commodification of children.

Some fear that the exchange of surrogacy

services for compensation will transform the procreation of children into

a commercial enterprise, thus creating a “baby-selling” market. Again,

the court rejected this argument by pointing out the lack of data to

support the proposition that children will be treated as commodities.

the contrary, the court found limited data that showed an absence of an

adverse effect on all parties in a surrogacy arrangement, including

children.

Following the lead of Johnson v. Calvert, courts in the U.S.

began enforcing surrogacy agreements citing the rationale used in the

case.

2. Constitutional Cases Influencing Surrogacy Agreements

The Supreme Court has yet to weigh in on surrogacy, however,

there have been decisions relating to one’s right to privacy and the right

to marry that has legal consequences on the legality of surrogacy

agreements and laws. Roe v. Wade, Obergefell v. Hodges, and Pavan v.

Johnson, 851 P.2d at 784.

Id. at 785.

Id.

Johnson, 851 P.2d at 785.

See, e.g., C.M. v. M.C., 213 Cal. Rptr. 3d 351 (Ct. App. 2017); P.M. v. T.B., 907

N.W.2d 522 (Iowa 2018).

12 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

Smith, have all shaped the contents and enforcement of surrogacy

agreements and laws.

Like the agreement at issue in Johnson, many surrogacy agreements

contain abortion provisions. When the enforceability of a surrogacy

agreement is challenged, such provisions trigger a constitutional analysis

as a result of the Supreme Court’s decision in Roe v. Wade. Decided in

1973, Roe v. Wade arguably limits the ability of intended parents to

compel surrogates to terminate or maintain a pregnancy.

Roe v. Wade

implicated the constitutionality of a Texas law criminalizing abortions.

The Supreme Court held that the decision of whether to continue or

terminate a pregnancy in the first trimester fell within the right of privacy

and therefore struck down the law as unconstitutional.

Due to the

Supreme Court’s decision in Roe, intended parents are prohibited from

forcing surrogates to terminate a pregnancy.

Instead, intended parents

utilize surrogacy agreements to outline the conditions under which the

parties may request the surrogate to terminate the pregnancy and provide

for monetary remedies if the agreed-upon conditions are not met.

Roe v. Wade, 410 U.S. 113 (1973); Obergefell v. Hodges, 576 U.S. 644

(2015); Pavan v. Smith, 137 S. Ct. 2075 (2017).

Roe v. Wade, 410 U.S. 113 (1973).

Id.

For example, below is a sample abortion and selective reduction provided by an

attorney.

Abortion And Selective Reduction Provision:

The Gestational Carrier has a Constitutional right to abort or not abort any child she is

carrying and cannot waive such a right. However, she agrees not to abort the pregnancy

except for medical reasons placing the Gestational Carrier’s life or health at risk, if

recommended by the attending OB/GYN physician and only after prior consultation with

the Intended Parents unless a medical emergency prevents such prior consultation.

Moreover, if her life or health is not at risk and she aborts the Child contrary to the

wishes of the Intended Parents then she will be in breach of this Agreement and will be

considered a material breach subject to the damages set out in the next paragraph. If there

is adequate time, the Intended Parents may choose to engage a second consulting

physician or specialist; however, if the opinion of the Gestational Carrier’s OB/GYN

physician is that the Gestational Carrier’s life and health are at imminent risk unless an

abortion occurs, then that attending OB/GYN Physician’s decision shall govern.

If the Gestational Carrier aborts the fetus contrary to the medical opinion as defined

above and contrary to the desires of the Intended Parents, the Gestational Carrier agrees

to pay to the Intended Parents a sum of money equal to the expenses already paid by the

Intended Parents including, but not limited to, all legal and medical expenses, fertility

clinic fees and all fees and expenses paid to the Gestational Carrier with respect to this

Agreement. This shall include, but not be limited to, any medical expenses incurred by

the Intended Parents in relation to proceeding with the embryo creation and transfer

process.

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 13

Constitutional cases regarding same-sex marriages are also relevant

to surrogacy. Obergefell v. Hodges and Pavan v. Smith, which both

concerned the legal treatment of same-sex marriages, have shaped state

definitions of marriage.

A state’s legal definition of marriage is relevant

to surrogacy because some states only allow married couples to enter

into surrogacy agreements.

If a state’s legal definition of marriage

excludes same-sex couples, then same-sex couples, by definition, are

prohibited from entering into a surrogacy agreement. For example,

Virginia restricts the practice of surrogacy to married couples.

Additionally, Virginia defines intended parents as “a man and a woman,

The Gestational Carrier agrees to undergo an abortion at the request of the Intended

Parents, which request the Intended Parents may make if the treating physician advises

that the Child has identified a very low IQ mental deficiency or has medical issues that

are incompatible with life outside the womb or otherwise such severe and significant

defects to the point that the child’s or children’s quality of life would be affected and/or

cause suffering (a painful life or eventual death) and understands this is a material term.

The Gestational Carrier shall not undergo the medical procedures for selective reduction

without prior notification to and consultation with the Intended Parents unless the

attending physician believes the Gestational Carrier’s life is endangered. Intended Parents

shall not request that the Gestational Carrier have a selective reduction unless she is

carrying more than 2 fetuses or unless there is a severe or significant handicap,

deformation, malformation, or defect in one of the fetuses that is not surgically

correctable (like a cleft palate). Should the Gestational Carrier become pregnant with

more than 2 healthy fetuses, which is not at all likely as only one embryo is to be

transferred at a time, the Parties, along with the Parties attending physician will make a

determination regarding reduction at that time. The Gestational Carrier will not carry

more than two fetuses. The Parties acknowledge their understanding that selective

reduction could pose a risk to the continuing pregnancy, including causing the loss of the

entire pregnancy, and all Parties assume this risk.

Notwithstanding the foregoing section, all Parties, and specifically the Intended Parents,

acknowledge their understanding that a pregnant woman has an absolute Constitutional

right to abort or not abort any fetus she is carrying, regardless of the fact that she may not

be the genetic parent of such Child, and that any promise to the contrary is unenforceable.

All Parties also acknowledge that the Gestational Carrier has a right to make a

determination regarding whether or not to reduce any pregnancy she is carrying

regardless of the terms herein and that any promise to the contrary is unenforceable.

However, it is the Parties’ intention and they agree at the time of signing this Agreement

that they intend to perform as specifically stated herein and such terms are material.

See generally Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (where same-sex

couples brought action challenging the constitutionality of state laws banning same-sex

marriages or refusal to recognize same-sex marriages); Pavan v. Smith, 137 S. Ct. 2075

(2017) (where two same-sex couples challenged the constitutionally of a birth-certificate

law, as applied).

See LA. STAT. ANN. § 9:2718.1(6) (2016) (defining intended parents as a married

couple who “each exclusively contribute their own gametes to create their embryo”).

See VA. CODE ANN. § 20-156 (West 2019).

14 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

married to each other.”

As a consequence of such laws, same-sex

couples were not recognized as the legal parents of a child resulting from

a surrogacy arrangement. That changed in 2015 when the Supreme Court

declared in Obergefell that state laws barring same-sex marriages were

unconstitutional.

As a result of the Court’s ruling in Obergefell, same-

sex marriages are legally recognized in all states, including Virginia and

others that refused to extend marriage equality to same-sex couples.

In 2017, Pavan v. Smith

extended the holding of Obergefell

issues more directly related to surrogacy. Pavon involved two same-sex

couples: Leah and Jana Jacobs, and Terrah and Marisa Pavan.

Leah

Jacobs and Terrah Pavan each gave birth to a child and listed their

respective spouses as the parents on the birth certificate paperwork.

However, the Arkansas Department of Health only included the birth

mother’s name on the certificate, citing an Arkansas state law.

The

Arkansas law required a child’s birth certificate to list the male spouse of

the biological mother, regardless of his biological relationship to the

child.

However, the state did not extend that rule to same-sex couples,

thus, preventing biological mothers and fathers from listing their same-

sex spouses on birth certificates.

The central question presented in

Pavan was if it was unconstitutional for states to prevent same-sex

spouses from being listed on a birth certificate if that same right is

afforded to heterosexual couples.

The court answered in the

affirmative, explaining that state laws that treat same-sex couples

differently than heterosexual couples are unconstitutional and

inconsistent with the Court’s ruling in Obergefell.

The Court’s decision in Pavan is important to surrogacy because

many same-sex couples use surrogacy to form their families. Pavan

paves the way for intended parents to list their same-sex spouses on their

child’s birth certificate, even if their spouse is not genetically related to

Id.; As of June 2018, there is proposed legislation to change the definition of

“intended parents” to mean a “married couple,” rather than “a man and a woman.” See

2018 VA SB 612.

Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Id.

Pavan v. Smith, 137 S. Ct. 2075 (2017).

See generally Obergefell, 135 S. Ct at 644.

Pavan, 137 S. Ct. at 2076.

Id.

Pavan, 137 S. Ct. at 2077 (discussing ARK. CODE ANN. 20-18-401).

Id.

See Pavan v. Smith, 137 S. Ct. 2075 (2017).

Id.

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 15

the child resulting from a gestational surrogacy agreement. In light of

Obergefell and Pavan, state laws that treat same-sex couples differently

than heterosexual couples may be deemed unconstitutional. To prevent

lawsuits and other legal ramifications, state legislatures (such as

Virginia) have considered changes to surrogacy laws to cure

constitutional infirmities.

Going forward, laws that restrict the practice

of surrogacy should apply equally to same-sex and heterosexual couples.

Although none of these cases directly involve surrogacy, they

involve issues that are intricately intertwined with the practice of

surrogacy. Practitioners and lawmakers should keep these holdings in

mind when drafting surrogacy agreements, laws, and regulations.

3. Statutes Governing Surrogacy Agreements

No federal laws or regulations govern surrogacy in the U.S.

Consequently, each state employs its own approach, resulting in

inconsistencies in the practice and enforcement of surrogacy agreements.

Statutes governing surrogacy fall into four categories of statutes: (1)

those that permit surrogacy contract enforcement; (2) those that permit

surrogacy contract enforcement, but with significant restrictions; (3)

those that civilly or criminally prohibit surrogacy agreement

enforcement; and (4) those that are silent on the issue of surrogacy.

100

California falls within the first category by explicitly declaring that

gestational surrogacy agreements are “presumptively valid and shall not

be rescinded or revoked without a court order.”

101

Texas and Virginia fall

within the second category by only enforcing surrogacy agreements

commissioned by married couples.

102

States within the third category

include New York and Michigan,

103

which treat surrogacy contracts as

“void and unenforceable,” contrary to public policy.

104

Fourth, and

Supra note 87, at 2078

100

See Morrissey, supra note 2, at 503.

101

CAL. FAM. CODE § 7962(i). (“An assisted reproduction agreement for gestational

carriers executed in accordance with this section is presumptively valid and shall not be

rescinded or revoked without a court order. For purposes of this part, any failure to

comply with the requirements of this section shall rebut the presumption of the validity of

the assisted reproduction agreement for gestational carriers.”).

102

TEX. FAM. CODE ANN. § 160.754 (West); VA. CODE ANN. § 20-156 (West).

103

See MICH. COMP. LAWS ANN. § 722.859 (West). (Surrogacy is criminalized under

Michigan law. Michigan Surrogate Parenting Act provides that, “[a] person other than a

participating party who induces, arranges, procures, or otherwise assists in the formation

of a surrogate parentage contract for compensation is guilty of a felony punishable by a

fine of not more than $50,000.00 or imprisonment for not more than 5 years, or both.”).

104

See MICH. COMP. LAWS ANN. § 722.855 (West); N.Y. DOMESTIC REL. LAW § 122

(McKinney 2021).

16 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

finally, states such as Mississippi have neither statutory nor case law

regarding the enforcement of surrogacy agreements.

105

Inconsistent approaches to the treatment of surrogacy agreements

are due, in part, to public policy concerns discussed in Johnson

106

regarding the potential impact of surrogacy on women, family relations,

and children. The previously discussed statutes are the legislatures’

varying attempts at addressing these concerns. However, the prevalence

of cross-state surrogacy transactions and forum shopping has propelled

the need for a uniform approach to the legal treatment of surrogacy

agreements.

107

III.

THE UPA AND THE ENFORCEABILITY OF GESTATIONAL SURROGACY

CONTRACT PROVISIONS

A uniform approach to surrogacy was introduced in 2000 with the

promulgation of the UPA (2000). Section III.A discusses the evolution of

the UPA through its current 2017 version. In an effort to guide drafting

practices, Section III.B evaluates the enforceability of gestational

surrogacy agreement provisions under the UPA (2017).

A. The Uniform Parentage Act

The UPA was revised to reflect changes in society and technology.

The following sections discuss the history of the UPA and highlight

some key changes to the UPA over the years.

1. Pre-UPA and the Uniform Parentage Act of 1973

In response to a series of Supreme Court decisions,

108

the ULC

promulgated the UPA, which focused on creating a modern civil

paternity action for determining the natural father of any child and

eliminating any distinctions between “legitimate” and “illegitimate”

children.

109

Prior to its promulgation in 1973, a child born to an

unmarried mother was ‘illegitimate’ under the common law.

110

The

105

See Gestational Surrogacy in Mississippi, CREATIVE FAM. CONNECTIONS,

https://www.creativefamilyconnections.com/us-surrogacy-law-map/mississippi/ (last

visited Aug. 13, 2018).

106

See generally Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).

107

See Caitlin Conklin, Note, Simply Inconsistent: Surrogacy Laws in the United

States and the Pressing Need for Regulation, 35 W

OMEN’S RTS. L. REP. 67 (2013).

108

See e.g., Trimble v. Gordon, 430 U.S. 762 (1977); Levy v. Louisiana, 391 U.S. 68

(1968).

109

See generally Uniform Parentage Act § 2 cmt. (1973).

110

See Parentage Act Summary, ULC (May 27, 2015), http://lgbtbar.org/annual/wp-

content/uploads/sites/7/2015/05/10-Parentage-Act-Summary.pdf.

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 17

common law placed harsh penalties on illegitimate children by denying

them inheritance and property rights.

111

Additionally, biological fathers

of illegitimate children were not afforded parental rights and were not

burdened with parental obligations.

112

The legal status of illegitimate

children changed in 1968 after the Supreme Court’s ruling in Levy v.

Louisiana.

113

In Levy, the Court held a statute construed as denying a

right to recovery based on a child’s status as an illegitimate child was a

violation of the Equal Protection Clause of the Fourteenth

Amendment.

114

The original goal of the UPA (1973) was to provide a

legal relationship between natural parents and their children regardless of

marital status.

115

Given its narrow scope, the UPA (1973) did not address

surrogacy. As of 2000, nineteen states enacted the 1973 version of the

UPA.

116

2. The Uniform Parentage Act of 2002

The ULC revised the UPA in 2000 in light of technological

advancements in the area of assisted reproductive technology (“ART”).

The UPA (2000) was broader in scope than its predecessor, incorporating

and replacing the Uniform Status of Children of Assisted Conception Act

(“USCACA”) and Uniform Putative and Unknown Fathers Act

(“UPUFA”).

117

Further changes were made to the UPA (2000) after

objections from the American Bar Association that there were

discrepancies in the 2000 version between the treatment of children of

unmarried parents and children of married parents.

118

The ULC

responded by further updating the UPA in 2002, resulting in the UPA

(2002). The 2002 version of the UPA included: provisions regarding

genetic testing, provisions permitting a non-judicial acknowledgment of

paternity, and rules for determining the parent-child relationship for

children who were conceived through ART.

One of the most progressive changes to the UPA was the addition

of Article 8 authorizing traditional and gestational surrogacy agreements.

The 2002 version of the UPA adopted a procedurally intensive model

that required contracting parties to go through a pre-conception process

111

Id.

112

Id.

113

See generally Levy v. Louisiana, 391 U.S. 68 (1968).

114

Id.

115

See generally Uniform Parentage Act § 2 cmt. (1973).

116

See Uniform Parentage Act (2002).

117

Id.

118

Id.

18 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

in which the parties petitioned the court to validate the agreement.

119

order for the agreement to be validated following elements needed to be

met: (1) the contents of the agreement must adhere to statutory

requirements; (2) parties must petition the court to commence a

proceeding to validate the agreement; and (3) parties must participate in

a hearing where the court makes a determination regarding the validity of

the gestational agreement and whether the intended parents should be

declared the legal parents of the child.

120

As of July 2017, only Texas and Utah have enacted the UPA

(2002)’s surrogacy provisions.

121

Overall, eleven states adopted the 2002

version of UPA; with at least five states adopting non-uniform surrogacy

provisions.

122

Objections from both anti- and pro-surrogacy camps

hampered legislative enactment. Some resisted the UPA’s legitimizing of

still-controversial surrogacy agreements, and others objected to its

procedurally intensive model for that legitimization. The UPA (2002)

was likely too pro-surrogacy for states that were obstructive towards the

practice of surrogacy, by providing a pathway to parenthood through the

legal recognition of surrogacy agreements where surrogates were paid

for their services. Conversely, the 2002 version’s statutory framework

for the legal recognition of surrogacy agreements was likely too

burdensome for states that were supportive of the practice of surrogacy.

3. Uniform Parentage Act of 2017

The ULC tried again to achieve uniformity and reflect changes in

law, technology, and surrogacy practice with the 2017 revision of the

UPA. In light of the Supreme Court’s decision in Obergefell

123

and

Pavan,

124

the 2017 version of the UPA ensures equal treatment of

children of same-sex couples. It also adopted gender-neutral terms such

as “individual,” in place of “father” or “mother.” Most important for

present purposes, the recent changes to the UPA provide a uniformed and

modernized statutory framework for the establishment of parent-child

relationships between intended parents and children resulting from

surrogacy agreements.

The 2017 version of the UPA streamlines the gestational surrogacy

process. Previously, the UPA provided the same rules for gestational and

119

See generally Uniform Parentage Act § 801-805 (2002)

120

Id.

121

See Uniform Parentage Act, art. 8 cmt. (2017).

122

Id.

123

See Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

124

See Pavan v. Smith, 137 S. Ct. 2075 (2017).

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 19

traditional surrogacy by requiring parties to get their surrogacy

agreements approved by a court through a petitioning process.

125

The

2017 version of the UPA dispensed of the pre-conception petition model

for gestational surrogacy agreements. As long as the UPA (2017)’s

statutory requirements are met, intended parents are now treated as the

legal parents of a child, without having to go through the court

petitioning process.

126

The UPA (2017) provides for a different legal

treatment for traditional surrogacy. The UPA (2017)’s approach to

traditional surrogacy agreements is similar to the pre-conception process

outlined in the UPA (2002) for both gestational and traditional surrogacy

agreements.

127

The UPA (2017) also allows for the termination of

traditional surrogacy agreements by the surrogate within seventy-two

hours of childbirth.

128

As of July 2018, only Vermont and Washington

had enacted the most recent version of the UPA, and it had been

introduced in Rhode Island and California.

129

B. Enforceability of Gestational Surrogacy Contract Provisions under

the 2017 Uniform Parentage Act

As more jurisdictions begin to adopt the UPA (2017), it is

imperative to evaluate and augment current drafting practices to ensure

the enforceability of surrogacy agreements. The following section

provides an overview of the contents of gestational surrogacy

agreements. The sections that follow evaluate the legality of current

drafting practices under the UPA (2017)’s surrogacy provisions,

125

See, Uniform Parentage Act § 802-803 (2002).

126

Uniform Parentage Act § 802 (2017). (“(a) To execute an agreement to act as a

gestational or genetic surrogate, a woman must: (1) have attained 21 years of age; (2)

previously have given birth to at least one child; (3) complete a medical evaluation

related to the surrogacy arrangement by a licensed medical doctor; (4) complete a mental-

health consultation by a licensed mental-health professional; and (5) have independent

legal representation of her choice throughout the surrogacy arrangement regarding the

terms of the surrogacy agreement and the potential legal consequences of the agreement.

(b) To execute a surrogacy agreement, each intended parent, whether or not genetically

related to the child, must: (1) have attained 21 years of age; (2) complete a medical

evaluation related to the surrogacy arrangement by a licensed medical doctor; (3)

complete a mental-health consultation by a licensed mental health professional; and (4)

have independent legal representation of the intended parent’s choice throughout the

surrogacy arrangement regarding the terms of the surrogacy agreement and the potential

legal consequences of the agreement.”).

127

Uniform Parentage Act § 813-15 (2017).

128

Uniform Parentage Act § 814 (2017).

129

Enactment Map, ULC, https://www.uniformlaws.org/committees/community-

home?CommunityKey=c4f37d2d-4d20-4be0-8256-22dd73af068f (last visited July 10,

2018).

20 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

constitutional law, and contract law principles. Additionally, each

evaluation is coupled with recommendations for adjustments to drafting

practices to ensure that surrogacy agreements are compliant with the

UPA (2017).

1. Overview of Gestational Surrogacy Agreements

Four surrogacy agreements provide the source material for this

section.

130

Two attorneys who represent intended parents and surrogates

in Maryland, Washington, D.C., and Pennsylvania use these agreements.

While the agreements vary, this review focuses on the commonalities

since they may well be present in other surrogacy agreements.

Surrogacy agreements must reflect the state law that governs, but

they tend to contain some relatively standard clauses. These clauses fall

into seven categories: (1) representations or factual promises regarding

the present or past; (2) covenants regarding the surrogate’s behavior; (3)

compensation to the surrogate and agency, including reimbursements and

financing; (4) decision-making regarding abortion or reduction of

multiples; (5) breaches and remedies; (6) confidentiality; and (7)

consequences of the separation, death, or divorce of intended parents.

131

Due to space limitations, this paper focuses on behavior; finance;

abortion and reduction; separation and death provisions; and the

enforceability of those provisions under the statutory framework of the

UPA (2017), constitutional law, and contract law principles.

2. Behavior Provisions

Parents usually make lifestyle changes during pregnancy. Naturally,

some intended parents expect surrogates to make similar changes during

the pregnancy period. Behavior provisions are used in surrogacy

agreements as a way for intended parents to exert control over

surrogates’ conduct during pregnancy.

132

Provisions regarding behaviors

may include guidelines regarding communication, restrictions on sexual

activities, and requirements regarding physical exercise.

133

Some

agreements place limitations on the kind of foods surrogates may

130

The sample agreements used as the source for this information are available on file

with the author.

131

Id.

132

Hillary L. Berk, The Legalization of Emotion: Managing Risk by Managing

Feelings in Contracts for Surrogate Labor, 49 L

AW & SOC’Y REV. 143, 157-59 (Mar.

2015).

133

Id.

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 21

consume and prohibitions on activities, such as microwave use.

134

One

contract required that the surrogate, “abstain from any sexual conduct

which may result in contraction of a sexually transmitted disease.”

135

Another contract prohibited the surrogate from engaging in sexual

conduct during the third trimester of pregnancy.

136

The diet and exercise

routine of surrogates is also a concern for intended parents. One contract

provided that the surrogate should “refrain from strenuous exercise, to

the extent that exercise is contrary to her attending physicians’

advice.”

137

Another contract was more invasive, requiring the surrogate

to engage in acupuncture.

138

The UPA (2017) section 804(a)(7) may limit the ability of intended

parents to include lifestyle restrictions in surrogacy agreements.

139

The

first sentence in section 804(a)(7) provides that “[t]he agreement must

permit the surrogate to make all health and welfare decisions regarding

herself and her pregnancy.”

140

In light of this section, provisions limiting

the sexual conduct, diet, and exercise of the surrogate may be

unenforceable, if construed as a “health and welfare” limitation.

Surrogacy agreements may still outline the expectations of intended

parents as it pertains to the surrogate’s health and welfare. However, the

agreement should also acknowledge that it is within the surrogate’s sole

discretion to abide by such expectations. Lifestyle restrictions may also

be unenforceable on contract law grounds. Lifestyle restrictions that

dictate a surrogate’s ability to get a manicure

141

or the number of times a

surrogate engages in sexual conduct may be deemed unconscionable by

the courts and thus unenforceable.

There are also contract law considerations. Such provisions may be

deemed to be an unduly restriction on a surrogate’s autonomy and

therefore unconscionable. Some scholars argue that lifestyle restrictions

are analogous to involuntary servitude.

142

Proponents of this argument

contend that, much like slaves, surrogates do not have autonomy over

their bodies; instead, their bodies (or more specifically, wombs) are

134

Id.

135

See Enactment Map, supra note 129.

136

Id.

137

Id.

138

Id.

139

See generally Uniform Parentage Act §804(a)(7) (2017).

140

Id.

141

See Enactment Map, supra note 129.

142

See generally Anita L. Allen, Surrogacy, Slavery, and the Ownership of Life, 13

ARV. J.L. & PUB. POL’Y 139 (1990).

22 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

controlled by the intended parents.

143

Arguments against the

enforceability of lifestyle restrictions based on unconscionability are

unlikely to succeed. First, proponents of this argument often ignore an

essential difference between the lack of autonomy that may be involved

in a surrogacy arrangement and slavery: choice. Slaves were either born

or sold into slavery and therefore were never given a choice regarding

the relinquishment of their autonomy. In contrast, surrogates in the U.S.

voluntarily enter into surrogacy arrangements. By entering into a

surrogacy contract, a surrogate makes the choice to relinquish some

control of her body for a set period of time. Not only is this choice

voluntary, but it is also negotiable. Surrogates are free to negotiate the

type and amount of autonomy they are willing to relinquish.

3. Finance Provisions

Provisions relating to financing during the surrogacy process

usually concern the compensation, reimbursement, and health insurance

coverage of the surrogate’s expenses incurred as a result of the surrogacy

arrangement. The UPA (2017) permits compensated surrogacy and

provides guidelines for payments made to surrogates and the use of the

surrogate’s health insurance plan to cover medical expenses.

144

i. Compensation & Reimbursements

Surrogates incur significant medical, legal, and living expenses

during the surrogacy process. The gestational surrogacy agreements in

my sample provided for the reimbursement of such expenses; carefully

noting that such reimbursements do not constitute compensation for

services or the relinquishment of parental rights.

145

The term

“compensation” is rarely used in surrogacy agreements.

146

Instead,

payments made to surrogates and their spouses are often construed as

143

Id.

144

See generally Uniform Parentage Act §804 (2017).

145

For example, the sample finance provision in one agreement provided:

It is expressly understood and agreed that reimbursements for expenses for legal,

medical, psychological and psychiatric expenses, and other miscellaneous expenses, paid

on behalf of the Gestational Carrier as described herein shall in no way be construed as a

fee for termination of parental rights or a payment in exchange for the placement of the

Child with the Intended Parents.

All payments made pursuant to this Agreement are to be deemed reimbursements or

payments for reasonable medical and ancillary costs and expenses including reasonable

household and living expenses. Consequently, no payments shall be construed as fees or

compensation for services.

146

See supra note 83.

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 23

reimbursements for medical, living, and other ancillary expenses. This is

done to avoid the tax implications of directly compensating surrogates

for their services. One portion of an agreement stated:

[I]t is expressly understood and agreed that reimbursements for

expenses for legal, medical, psychological and psychiatric

expenses, and other miscellaneous expenses, paid on behalf of

the gestational carrier as described herein shall in no way be

construed as a fee for termination of parental rights or a payment

in exchange for the placement of the child with the intended

parents. [. . .] [A]ll payments under this agreement are to be

construed solely as reimbursements, and therefore not subject to

taxation.

The exclusion of contract provisions regarding compensation for

surrogacy services from surrogacy agreements may also be a reflection

of current state laws. Some jurisdictions prohibit surrogates and intended

parents from entering into surrogacy agreements by which the surrogate

is being compensated for her services.

147

Such laws are enacted, in part,

to prevent the creation of a “baby-selling” market.

148

The UPA (2017) sections 804(a)(6) and 804(b)(1)-(2) provide

guidelines regarding payments made to surrogates.

149

Section 804(a)(6)

provides that surrogacy agreements must disclose “how each intended

parent will cover the surrogacy–related expenses of the surrogate and the

medical expenses of the child.”

150

Additionally, section 804(b) authorizes

compensated surrogacy by permitting “payments of consideration and

reasonable expenses” to surrogates.

151

Existing drafting practices

regarding surrogacy payments would remain fairly unaffected under the

UPA (2017). If enacted, attorneys in jurisdictions, such as California,

152

that currently permit compensated surrogacy can continue to use contract

language similar to the language quoted above. Jurisdictions, such as

New York,

153

that currently prohibit compensated surrogacy must

include contract language to outline how the intended parents will

reimburse the surrogate for expenses incurred during the arrangement

and how, if at all, the surrogate will be compensated for her services.

147

See e.g., NEB. REV. STAT. § 25-21,200; MICH. COMP. LAWS § 722.855.

148

See generally MARGARET JANE RADIN, CONTESTED COMMODITIES (Harv. Univ.

Press 1st ed., 1996).

149

Uniform Parentage Act §804 (2017).

150

Uniform Parentage Act §804(a)(6) (2017).

151

Uniform Parentage Act §804(a)(7) (2017).

152

CAL. FAM. CODE § 7962(a)(4) (West).

153

N.Y. DOM. REL. LAW § 123(1) (McKinney).

24 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

Given the tax implications, it seems unlikely that practitioners will

augment contract language to include provisions regarding payments to

surrogates for their services, making the UPA (2017)’s permissive

approach to compensated surrogacy unavailing.

There are also contract law considerations when evaluating the

enforceability of payment provisions in surrogacy agreements.

Opponents to the practice of surrogacy have argued against the

enforcement of compensated surrogacy agreements based on public

policy grounds.

154

Some fear that the exchange of surrogacy services for

compensation will transform the procreation of children into a

commercial enterprise, thus creating a baby-selling market.

155

The court

in Johnson v. Calvert rejected this argument by pointing out the lack of

data to support this proposition.

156

Logical reasoning also illustrates why

this proposition does not hold true. Gestational surrogacy has not and is

unlikely to result in the commodification of children because intended

parents are not paying for children. Instead, intended parents compensate

surrogates for their service and pregnancy-related expenses.

157

In light of

the foregoing reasons, public policy arguments against the enforcement

of surrogacy payment provisions are unlikely to succeed.

ii. Health Insurance

Surrogates are not typically reimbursed for all medical expenses.

Surrogates are expected to utilize their health insurance, if available, to

cover medical expenses.

158

Intended parents are expected to reimburse

the surrogate for medical expenses to the extent that those expenses are

not covered by the surrogate’s health insurance. One sample agreement

included a clause that stated:

[G]estational carrier confirms that she has a personal

comprehensive health insurance policy [. . .] in place which, to

the best of her knowledge, will cover the cost associated with her

pregnancy, labor and delivery.

154

See Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (the Court addressed the

commodification argument by noting that no evidence was offered to support it).

155

See generally Radin, supra note 148.

156

See Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).

157

See generally Enactment Map, supra note 129.

158

Id.; see also HEATHER JACOBSON, LABOR OF LOVE: GESTATIONAL SURROGACY AND

THE

WORK OF MAKING BABIES (Naomi R. Gerstel et al. eds., 2016).

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 25

Some health insurers have resisted this practice.

159

However, health

insurance policies remain one of the primary ways of covering the costs

of surrogacy in the U.S.

The UPA (2017) section 804(a)(6) governs the inclusion of health

insurance provisions in surrogacy agreements.

160

The section provides

that surrogacy agreements “must include a summary of the health-care

policy provisions related to coverage for surrogate pregnancy,” if the

surrogate’s health insurance is used to cover medical expenses.

161

The

section also requires that “any possible liability of the surrogate, third-

party-liability liens, other insurance coverage, and any notice

requirement that could affect coverage or liability of the surrogate,” must

be disclosed.

162

Each agreement in the sample required the use of the

surrogate’s health insurance plan to cover medical expenses. However,

none of the agreements summarized or included any information

regarding the surrogate’s health insurance policy and the coverage

available under the policy.

163

Assuming the sample agreements are

representative of standard drafting practices, existing surrogacy

agreements will not be enforceable under section 804(a)(6). Attorneys

must adjust drafting practices to include a summary of the surrogate’s

health insurance coverage.

4. Abortion and Selective Reduction Provisions

Significantly more controversial than compensation provisions are

abortion provisions. Abortion provisions are intended to provide

intended parents with the option of terminating the pregnancy in the

event of multiple fetuses or medical issues. One sample agreement

provided that the surrogate agrees:

[N]ot to abort the pregnancy except for medical reasons placing

the [her] life or health at risk, if recommended by the attending

OB/GYN physician and only after prior consultation with the

159

See e.g., Mid-South Ins. Co. v. Doe, 274 F. Supp. 2d 757 (D.S.C. 2003) (where

health insurer brought action seeking declaratory judgment that its policy did not cover

surrogacy related medical expenses for medical services provided to the insured who

served as a surrogate for biological intended parents).

160

See generally Uniform Parentage Act §804(a)(6) (2017).

161

Id.

162

Id.

163

See e.g., the contract at issue in Johnson v. Calvert, 851 P.2d 776 (Cal. 1993); see

also supra, note 83.

26 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

intended parents unless a medical emergency prevents such prior

consultation.

164

The agreement also stated that the surrogate “agrees to undergo an

abortion at the request of the intended parents” if it is determined that

there may be a risk to the child’s health or identified a very low IQ

mental deficiency.

165

The effectiveness of the previously mentioned

clauses is limited because surrogacy agreements generally acknowledge

the right of the surrogate to terminate or continue the pregnancy, while

providing remedies for intended parents if the surrogate decides to

continue or terminate a pregnancy against the wishes of the intended

parents.

166

One agreement provided that “if the gestational carrier aborts

the fetus contrary to the medical opinion as defined above and contrary

to the desires of the intended parents, the gestational carrier agrees to pay

to the intended parents a sum of money equal to the expenses already

paid by the intended parents.”

167

Abortion provisions have constitutional implications. As a result of

Roe (which held that a woman’s right to privacy included the right to

terminate her pregnancy), surrogacy agreements acknowledge the right

of the surrogate to terminate or continue the pregnancy.

168

Any attempt to

force a surrogate to terminate or continue a pregnancy would be

inconsistent with the principles of Roe.

The UPA (2017) sections 804(a)(5) and 804(a)(7) also govern the

inclusion of abortion provisions in surrogacy agreements.

169

In relevant

part, section 804(a)(5) provides that the intended parents “will assume

responsibility for the financial support of the child, regardless of number

of children born or gender or mental or physical condition of each

child.”

170

Section 804(a)(5) has important implications regarding the

enforceability of abortion provisions and the remedies available to

intended parents. Even if intended parents request that the surrogate

undergo an abortion, as provided for in the sample agreement, the

intended parents will remain financially responsible for the child if the

surrogate does comply with the request. Intended parents should

164

Id.

165

Id.

166

Id.

167

Id.

168

See generally Roe v. Wade, 410 U.S. 113 (1973). See Uniform Parentage Act

§812(d) (2017) (also limits the ability of intended parents to request that the surrogate

terminate or continue the pregnancy).

169

Uniform Parentage Act §804(a)(5) (2017); Uniform Parentage Act §804(a)(7)

(2017).

170

Uniform Parentage Act §804(a)(5) (2017)

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 27

carefully select their surrogate candidates, giving careful consideration to

a surrogate’s willingness to undergo an abortion. Section 804(a)(7)

compliments section 804(a)(5) by reinforcing a surrogate’s constitutional

right to continue or terminate the pregnancy.

171

Section 804(a)(7)

provides:

[T]he agreement must permit the surrogate to make all health and

welfare decisions regarding herself and her pregnancy. This [act]

does not enlarge or diminish the surrogate’s right to terminate her

pregnancy.

172

Section 804(a)(7) will have little to no impact on drafting practices

because, as previously discussed, abortion provisions generally

acknowledge the surrogate’s constitutional right to terminate or maintain

the pregnancy while outlining the conditions and expectations in the

event that the intended parents or surrogate does decide to terminate the

pregnancy.

5. Provisions Regarding the Separation, Divorce, Incapacitation, or

Death of Intended Parents

In addition to governing the relationship between surrogates and

intended parents, gestational surrogacy agreements may provide

guidelines for the determination of parentage in the event of unforeseen

circumstances, such as divorce or death. Parentage provisions are

important in surrogacy agreements because they reduce ambiguity

regarding parentage, thus reducing the need for litigation.

Some surrogacy agreements detail the procedures for carrying out

or terminating the agreement in the event that the intended parents

become separated, divorced, incapacitated, or deceased prior to or after

the embryo transfer. Generally, surrogacy agreements are deemed null

and void if the separation, divorce, incapacitation, or death of the

intended parent occurs prior to embryo transfer.

173

If separation or

divorce occurs after the embryo transfer, some surrogacy agreements

provide that the parentage of the child is determined pursuant to a

custody agreement or a court order.

174

If incapacitation or death occurs

after the embryo transfer, either intended parent may agree to proceed

with the agreement.

175

If both intended parents are deceased, surrogacy

171

Uniform Parentage Act §804(a)(7) (2017).

172

Id.

173

Enactment Map, supra note 129.

174

Id.

175

Id.

28 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

agreements typically provide that the parentage of the child is determined

according to the last will and testament of the intended parents or by the

parentage laws of the governing state.

176

i. Separation or Divorce

With a significant number of U.S. marriages ending in divorce,

177

surrogacy agreements must account for the possibility that the intended

parents’ marriage may dissolve before, during, or after the embryo is

implanted in the surrogate.

The UPA (2002) did not explicitly address the parentage of a child

if the intended parents divorced or died during the arrangement. To

provide clarity regarding this issue, the UPA (2017) sections 805, 809,

and 810 address the parentage of a child resulting from a surrogacy

arrangement when the intended parents are divorced or deceased.

178

Section 805 also addresses the impact of a subsequent marriage on the

surrogacy agreement. Section 805(b)(2) provides:

[T]he divorce, dissolution, annulment, declaration of invalidity,

legal separation, or separate maintenance of an intended parent

after the agreement is signed by all parties does not affect the

validity of the agreement.

179

In other words, a change in the relationship status between the

intended parents does not change their legal status as a parent of a child

resulting from a surrogacy agreement. Additionally, section 805(b)(1)

provides that the subsequent marriage of an intended parent “does not

affect the validity of a surrogacy agreement,” and the spouse of the

intended parent is not the parent of the child resulting from the

agreement.

180

The parentage of a child whose intended parents separate

181

during or after the pregnancy is an important legal issue that has been

litigated. Such cases usually concern a dispute between former spouses

regarding custody and financial support for a child resulting from a

surrogacy agreement.

182

The inclusion of section 805(b) reduces

176

Id.

177

National Marriage and Divorce Rates, CDC (2016),

https://www.cdc.gov/nchs/data/dvs/national_marriage_divorce_rates_00-16.pdf.

178

See generally Uniform Parentage Act §805 (2017); Uniform Parentage Act §809

(2017); Uniform Parentage Act §810 (2017).

179

Uniform Parentage Act §805(b)(2) (2017).

180

Uniform Parentage Act §805(b)(1) (2017).

181

The term “separate” is used to reference all forms of separation including divorce.

182

See, e.g., Jaycee B. v. Superior Court, 42 Cal. App. 4th 718 (4th Dist. 1996); In re

Marriage of Buzzanca, 61 Cal. App. 4th 1410 (4th Dist. 1998).

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 29

ambiguity regarding parentage in the event of separation by affirming the

validity of the agreement.

183

Notably, section 805 is a default provision

that only applies if the surrogacy agreement fails to address the issue of

separation.

While the UPA (2017) does provide a baseline for determining

parentage, it does not provide clarity regarding the specific duties and

responsibilities of each parent. To avoid future disputes, attorneys should

carefully consider potential conflicts that may arise as a result of the

separation of the intended parents. Surrogacy agreements should include

a custody arrangement (or guidelines for determining custody) and

provisions regarding financial support for a child resulting from a

surrogacy agreement.

ii. Incapacitation or Death

A custody arrangement may also be beneficial in the event of the

death or incapacitation of the intended parents. Considering death in the

midst of preparing an agreement to create life may be daunting and

uncomfortable. However, the death of an intended parent may have

serious inheritance and custody implications. Therefore, it is important

for intended parents to solidify their postmortem wishes in the surrogacy

agreement or a will.

The addition of the UPA (2017) section 810 has significant drafting

implications for attorneys. First, as a threshold matter, section 809

declares that each intended parent is the parent of a child conceived

under a gestational surrogacy agreement.

184

Under section 810, the

intended parent is still the parent of the child even if the parent dies while

the surrogate is pregnant.

185

However, section 810 also provides that an

intended parent is not the parent of a child resulting from a surrogacy

arrangement if the intended parent dies before the transfer of an embryo

unless:

(1) the agreement provides otherwise; and

(2) the transfer of a gamete or embryo occurs not later than [36]

months after the death of the intended parent or birth of the child

occurs not later than [45] months after the death of the intended

parent.

186

183

Uniform Parentage Act §804(b) (2017).

184

Uniform Parentage Act §809 (2017).

185

Uniform Parentage Act §810 (2017).

186

See id.

30 CHILD AND FAMILY LAW JOURNAL [Vol. 9:1

Under the default rules of the UPA (2017), an intended parent who

dies prior to the embryo transplant may not be the parent of a child who

results from a surrogacy arrangement, even if the child is genetically

related to the deceased parent. The default rules have serious

implications on the child’s inheritance rights and the order of parentage.

Intended parents can avoid the potential impact of the UPA (2017)’s

default rules by addressing the parentage of a deceased intended parent

within the surrogacy agreement. However, an intended parent who dies

prior to the embryo transfer may still lack parental rights even if an

agreement provides otherwise. Section 810’s requirements to avoid the

default rules of the UPA (2017) are conjunctive, meaning that the

agreement must address the parentage of a deceased parent and the

embryo transfer or the childbirth must occur within the time period

allotted in the UPA (2017) section 810.

187

Notably, the UPA (2017) does not address the issue of both

intended parents dying during the surrogacy arrangement, nor does it

address the issue of incapacitation. Drafting attorneys should include

surrogacy agreement provisions that address parentage and how the

surrogacy arrangement should proceed if both intended parents die or if

one or both parents become incapacitated.

IV.

CONCLUSION

If adopted by state legislatures, the UPA (2017) will result in

moderate changes to the drafting practices in gestational surrogacy

agreements. Attorneys will need to augment their drafting practices to

ensure that behavior provisions do not hinder the surrogate’s statutory

right to make all decisions concerning her health and welfare. Like

before, attorneys should also consider the unconscionability of

behavioral provisions. The UPA permits compensated surrogacy and

attorneys may freely include contract provisions regarding payments to

the surrogate for her services.

The UPA also includes provisions regarding the use of health

insurance policies to cover medical expenses. Attorneys must include a

summary of the health insurance coverage to remain in compliance with

the UPA (2017). Abortion provision drafting practices will remain

unchanged. As usual, attorneys must acknowledge the surrogate’s right

to continue or terminate her pregnancy. The UPA’s provisions regarding

the separation or death of intended parents will have minimal impact on

drafting practices because the provisions do not dictate what should be

187

See id.

2021]Gestational Surrogacy Under the 2017 Uniform Parentage Act 31

included in the surrogacy agreement. However, if the parties wish to

avoid the default rules of the UPA, attorneys must include provisions

regarding separation and death. Overall, the statutory scheme of the UPA

(2017) may bring uniformity to a developing area while codifying and

streamlining existing drafting practices.