Family Lawâ•flBreach Baby: An Argument for Equal Enforcement of Traditional and Gestational Surrogacy Contracts

University of Arkansas at Little Rock Law Review University of Arkansas at Little Rock Law Review

Volume 43 Issue 1 Article 5

2020

Family Law—Breach Baby: An Argument for Equal Enforcement of Family Law—Breach Baby: An Argument for Equal Enforcement of

Traditional and Gestational Surrogacy Contracts Traditional and Gestational Surrogacy Contracts

James M. Gift

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James M. Gift,

Family Law—Breach Baby: An Argument for Equal Enforcement of Traditional and

Gestational Surrogacy Contracts

, 43 U. ARK. LITTLE ROCK L. REV. 127 (2020).

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127

FAMILY LAW—BREACH BABY: AN ARGUMENT FOR EQUAL

ENFORCEMENT OF TRADITIONAL AND GESTATIONAL

SURROGACY CONTRACTS

I. INTRODUCTION

In 2008, doctors diagnosed Marcia Rosecky with leukemia for the sec-

ond time.

At the same time, Marcia and her husband David wanted to be-

come parents and start a family.

However, because of the disease and its

treatment, Marcia’s eggs were no longer viable.

This prompted the

Roseckys to turn to longtime friend Monica Schissel, who offered to be-

come a surrogate and carry a child for the couple.

Monica and the Roseckys

obtained the advice of attorneys and executed a surrogacy contract styled a

“Parentage Agreement.”

Soon after, Monica was artificially inseminated

with David’s sperm and became pregnant.

Unexpectedly, a few weeks prior

to the birth of the child, Monica changed her mind and informed the

Roseckys that she intended to keep the baby.

The Roseckys had chosen

Monica because she was a childhood friend of Marcia, and she had offered

to be Marcia’s surrogate multiple times.

Even that close relationship did not

prevent the arrangement from souring.

The outcome of the resulting dispute was anything but certain. Wiscon-

sin courts had to decide if the state would enforce the contract between the

Roseckys and Monica Schissel.

The issue was the genetic relationship be-

tween Monica and the baby.

Nationally, enforcement of a surrogacy

agreement like the Roseckys’ is less certain than enforcement of one involv-

1. Scott Bauer, Supreme Court Upholds Surrogate Mother Agreements, STARTRIBUNE

(July 11, 2013, 4:20 PM), http://www.startribune.com/supreme-court-upholds-surrogate-

mother-agreements/215086311/.

2. Id.

3. Joshua J. Bryant, A Baby Step: The Status of Surrogacy Law in Wisconsin Following

Rosecky v. Schissel, 98 MARQ. L. REV. 1729, 1741 (2015).

4. Id.

5. Rosecky v. Schissel, 833 N.W.2d 634, 637, 640 (Wis. 2013). The parentage agree-

ment covered all the details of the surrogacy arrangement, including financial responsibilities,

a custody agreement and a parental rights termination clause. Id.

6. Bauer, supra note 1.

7. Rosecky, 833 N.W.2d at 637–38.

8. Id. at 638.

9. Id. at 639.

10. Id. at 639; Bryant, supra note 3, at 1740 (noting that the Roseckys’ case was one of

first impression in Wisconsin).

11. Rosecky, 833 N.W.2d at 646.

128 UA LITTLE ROCK LAW REVIEW [Vol. 43

ing a surrogate not genetically related to the child.

Thus, the young couple

faced the real possibility that they might lose custody rights to the child they

had spent months thinking was theirs.

Surrogacy law varies greatly from state to state.

States that allow sur-

rogacy still might not enforce the Roseckys’ contract, particularly with re-

spect to the parental rights termination clause.

Even states that allow sur-

rogacy may distinguish between gestational surrogacy and traditional surro-

gacy. A gestational surrogate is not genetically related to the child she car-

ries. In contrast, a traditional surrogate donates her own egg and is therefore

the child’s genetic mother, as was the case in Rosecky.

In Rosecky, the

court ruled that it was against the state’s public policy to enforce a parental

rights termination clause against a surrogate who was genetically related to

the child.

However, the court resolved the dispute in the Roseckys’ favor

by relying on the custody and placement provisions and the severability

clause.

Had the dispute happened in another state, the court might not have

reached the questions of the custody and placement provision because of the

type of contract involved.

12. Gaia Bernstein, Unintended Consequences: Prohibitions on Gamete Donor Anonym-

ity and the Fragile Practice of Surrogacy, 10 IND. HEALTH L. REV. 291, 296 (2013).

13. See Rosecky, 833 N.W.2d at 646.

14. See Joseph F. Morrissey, Surrogacy: The Process, The Law, and The Contracts, 51

WILLAMETTE L. REV. 459, 487–503 (2015). See also, e.g., New Jersey Gestational Carrier

Agreement Act, 2018 N.J. Laws 18 (codified in part at N.J. STAT. ANN. §§ 9:17-60 to -68

(2020) and amending other scattered sections of N.J. STAT. ANN. Title 9 and N.J. STAT. ANN.

§ 26:8-28); MICH. COMP. LAWS § 722.859 (2019); N.D. CENT. CODE § 14-18-05 (2019); N.Y.

DOM. REL. Law § 122 (Consol. 2019).

15. Morrissey, supra note 14, at 497–98 (describing North Dakota’s statute, “unique” in

distinguishing explicitly between traditional and gestational surrogacy; see also Rosecky, 833

N.W.2d at 652. The parental rights termination clause purported to control who, among the

parties to the contract, was to be the legal parent(s). Rosecky, 833 N.W.2d at 651. This issue

is probably the most important to the parties at the time of contracting. Id. However, it is also

the clause most often challenged when parties breach the agreement. Id.

16. Morrissey, supra note 14 at 472.

17. Rosecky, 833 N.W.2d at 652, 654.

18. Id. at 651, 653. The “parentage agreement” in Rosecky included a custody and

placement clause separate from the parental rights termination clause. Id. at 651. It also con-

tained a severability clause. Id. The severability clause allowed the court to enforce remain-

ing provisions in the contract in the event it found any clause unenforceable. Id. at 649. The

custody and placement clause were found to be enforceable even though the parental rights

could not automatically be terminated. Id. at 653.

19. See In re Baby M, 537 A.2d 1227, 1246–47 (N.J. 1987) (finding that the entire con-

tract violated public policy), superseded in part by statute, New Jersey Gestational Carrier

Agreement Act, 2018 N.J. Laws 18.

2020] BREACH BABY 129

Courts and legislatures are generally moving toward enforcing the par-

ties’ will in a gestational surrogacy contract.

However, many of those same

states are hesitant to legitimize traditional surrogacy contracts.

This note

argues that courts should enforce traditional surrogacy contracts in the same

manner as gestational surrogacy contracts. Part II provides a background of

the different genetic configurations that parties to surrogacy contracts can

enter into, including case examples where possible. Part III provides an

overview of the historical rationale for prohibiting surrogacy contracts gen-

erally and explores how these arguments apply with equal force to all four

possible permutations of the agreements. Part IV explains how courts have

departed from prior case law to enforce gestational surrogacy contracts

while still refusing to enforce all the provisions of traditional surrogacy con-

tracts, then addresses the problems this approach creates. Part V argues that

courts should not treat traditional surrogacy contracts less favorably than

gestational surrogacy contracts. Part VI articulates three possible methods

for equal treatment of surrogacy contracts and argues for an intent-based

model for determining parentage that can work for all permutations of these

contracts.

II. THE FOUR TYPES OF SURROGACY CONTRACTS

There are four types of surrogacy contracts based on the genetic rela-

tionship of the parties to the intended child. The types as presented below

represent the possible configurations of genetic relationships between the

surrogate, one or both of the intended parents, and the child. This note will

first give an overview of possible genetic relationships among parties to

gestational contracts. It will then compare parties’ relationships in tradition-

al contracts to their more readily enforceable gestational counterparts.

A. Type 1 Gestational Contracts

Perhaps the archetype of gestational surrogacy is where both intended

parents are genetically related to the child. Such was the case in Johnson v.

Calvert.

In Calvert, the intended mother had undergone a hysterectomy,

but her ovaries remained capable of producing viable eggs.

Likewise, her

20. See, e.g., Johnson v. Calvert, 851 P.2d 776 (Cal. 1993); 2018 N.J. Laws 18. N.Y.

DOM. REL. LAW § 122. This note assumes that the trend of enforcing the will of the parties in

gestational surrogacy arrangements is generally a good thing.

21. See In re Baby M, 537 A.2d at 1234, superseded in part by statute, New Jersey Ges-

tational Carrier Agreement Act, 2018 N.J. Laws 18. The holding barring enforcement of

traditional surrogacy contracts is still good authority.; N.Y. DOM. REL. LAW § 122

22. Calvert, 851 P.2d at 777–78.

23. Id. at 778.

130 UA LITTLE ROCK LAW REVIEW [Vol. 43

husband was fertile.

They only needed someone to provide gestational

services for a zygote fertilized in a lab using each of their genetic material.

Another possibility with this first permutation of gestational contracts is that

only one intended parent may be genetically related to the child. Such was

the case in C.M. v. M.C.

In C.M., a single intended father had the sole ge-

netic connection with the resulting children.

The court enforced the agree-

ment because the intended father substantially complied with the statutory

scheme governing surrogacy contracts.

B. Type 2 Gestational Contracts

The second type of gestational contract is one where no party to the

contract is genetically related to the resulting child.

In In re Marriage of

Buzzanca, after the dissolution of the intended parents’ marriage, a trial

court took the extraordinary step of declaring that the child had no legal

parents.

Buzzanca saw a surrogacy contract with no genetic relationship

between the child and any party to the contract fall apart when the Buzzanca

marriage dissolved.

Neither the intended father nor the surrogate wanted

the child.

The courts confronted this issue: absent any genetic connection

between the child and any party to the contract, who is the legal parent?

The appellate court ruled legal parentage belonged to the intended parents.

The intent of the parties governed this case even in the absence of a genetic

connection between the intended parents and the child.

24. Id.

25. Id.

26. See C.M. v. M.C., 213 Cal. Rptr. 3d 351, 354 (Cal. Ct. App. 2017). California’s

statutory scheme recognizes all gestational surrogacy contracts without regard to which in-

tended parent(s) are genetically linked to the child and enforces them as long as they substan-

tially comply with the procedures required by the law. See CAL. FAM. CODE § 7962 (Deering

2020).

27. Id.

28. Id. at 360–61.

29. See In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280, 282 (Cal. Ct. App. 1998).

30. Id. (In re Buzzanca was decided prior to the passage of the statutory scheme codify-

ing the enforcement of gestational surrogacy. The trial court reasoned that the lack of any

genetic connection to either the surrogate or the intended parents left the child legally parent-

less).

31. Id.

32. Id.

33. Id.

34. Id. at 293–94.

35. In re Buzzanca, 72 Cal. Rptr. 2d at 293.

2020] BREACH BABY 131

C. Type 1 Traditional Surrogacy Contracts

As with gestational contracts, there are two types of traditional con-

tracts with respect to genetic relationships. The facts of Rosecky describe the

first type: the child born pursuant to the contract was genetically related to

both the surrogate and the intended father.

The court remanded the case to

the trial court to give custody to the intended parents unless enforcement

would be against the best interest of the child, resulting in an outcome simi-

lar to the expected result in a gestational surrogacy contract dispute.

How-

ever, there was no termination of parental rights pursuant to the contract.

may be best to think of this as a form of substantial performance.

In the

context of a surrogacy contract, the material term may be the one providing

for legal custody, not termination of parental rights. If the point of the con-

tract is for the intended parents to gain the opportunity to raise a child, then

legal and physical custody become the most important terms of the contract.

It is therefore possible to accomplish the goal of the intended parents by

enforcing the custody and placement clauses, even with the surrogate retain-

ing her claim as a legal parent.

While substantial performance by enforcing the custody provision

might be possible under a traditional surrogacy contract, it is by no means

guaranteed.

Consider the case of In re Marriage of Moschetta. Robert

Moschetta occupied essentially the same position as David Rosecky.

in Rosecky, Mr. Moschetta was genetically related to the child and so was

the surrogate.

Upon dissolution of the Moschetta marriage, the surrogate

attempted to have the court declare her to be the child’s mother.

The trial

court found the legal parents to be the surrogate and Robert Moschetta.

The trial court awarded essentially a 50/50 split in the custody arrangement

on a best-interest-of-the-child rationale.

In The decision, the appellate

court recognized that as a consequence of its holding, it is difficult to know

36. See Rosecky v. Schissel, 833 N.W.2d 634, 637 (Wis. 2013).

37. Id. at 653.

38. Id. at 651 (reasoning the contractual termination of parental rights in this way was

against public policy.).

39. See CHARLES L. KNAPP ET AL., PROBLEMS IN CONTRACT LAW CASES AND MATERIALS

815–16 (8th ed. 2016). Substantial performance is where a deviation from the terms of a

contract exists, but the deviation is relatively minor and therefore not a material breach. Id.

40. See In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893, 895 (Cal. Ct. App. 1994).

41. Id. at 895; Rosecky, 833 N.W.2d at 637.

42. In re Moschetta, 30 Cal. Rptr. 2d at 895.

43. Id.

44. Id.

45. Id. at 901 (awarding joint custody despite some concerns regarding the surrogate’s

home).

132 UA LITTLE ROCK LAW REVIEW [Vol. 43

the outcome of a potential dispute when a traditional surrogacy contract is

involved.

D. Type 2 Traditional Surrogacy Contracts

Type 2 traditional surrogacy contracts involve a surrogate using her

own egg and the sperm of an anonymous donor. There does not appear to be

any published case law addressing this possible combination. Given the un-

certainty surrounding a type 1 traditional surrogacy,

the intended parents in

a type 2 traditional surrogacy contract may face even less certain parental

rights.

If that is the case, it is unsurprising that these fact patterns are rare.

III. HISTORICAL REASONS FOR INVALIDATING SURROGACY AGREEMENTS

AND HOW THEY APPLY TO EACH KIND OF CONTRACT

Anytime a new technology develops, the legal system must answer the

question, does the technology fit into our current legal scheme? With re-

spect to surrogacy agreements, courts have wrestled with this issue on sev-

eral grounds.

Historically, courts have found surrogacy contracts invalid

because (1) they are against the public policy of the state, (2) there is con-

cern that inherent coercion undermines the surrogate mothers’ voluntary

consent, (3) there is a perception that the surrogate mother is unable to un-

derstand the full extent of the contract, and (4) they violate existing adoption

or baby-selling statutes.

A. The Public Policy Argument

Courts have historically considered public policy when deciding the

validity of a contract.

The first court to address the validity of a surrogacy

46. Id. at 903. While what the court says here is true, the circumstances that are high-

lighted for the trial court to consider implicate a problem that will be discussed in detail later

in this paper. Specifically, the appellate court noted the trial court should consider the surro-

gate’s son’s potential involvement with drugs and gangs when it reviews the best interest of

the child. Id. at 902–03. Resolving parentage disputes arising from surrogacy agreements in

this way raises the specter of exploitation that is addressed in Section III.

47. In re Moschetta, 30 Cal. Rptr. 2d at 903.

48. Absent a statute that gives intended parents relief, they may occupy a position as a

third party and lack standing to even challenge a surrogate’s decision to keep the child.

49. The use of genetics as a presumption instead of enforcing the will of the parties may

result in unappealing consequences should this fact pattern come before the court. See infra

Section IV.

50. See Jessica H. Munyon, Note, Protectionism and Freedom of Contract: The Erosion

of Female Autonomy in Surrogacy Decisions, 36 SUFFOLK U.L. REV. 717, 719 (2003).

51. See id.

52. KNAPP, supra note 39, at 661.

2020] BREACH BABY 133

agreement decided the case on public policy grounds.

In re Baby M in-

volved a traditional surrogacy contract not unlike the one at issue in

Rosecky.

The intended parents (the Sterns) paid the surrogate (Whitehead)

to be artificially inseminated and to carry a child that would be theirs.

Af-

ter the child was born, Whitehead initially surrendered the child but then

reconsidered. After gaining the Sterns’ permission to spend a week with the

child, Whitehead announced she was keeping the baby.

The court invali-

dated the contract for the dual reasons of conflicting with the laws and pub-

lic policy of the state.

In determining that public policy weighed against the validity of the

contract, the Baby M court noted that the interests in the contract extended

beyond those of the parties to the agreement.

Additionally, the court con-

cluded that New Jersey’s statutory scheme showed a clear preference that a

child be “brought up with both natural parents.”

The Baby M court deter-

mined the parties acted in their own self-interest and did not (nor could they)

adequately consider the child’s interests at the execution of the contract.

Moreover, the court reasoned that money was Ms. Whitehead’s primary

motive for entering into the agreement giving up her parental rights.

The

court asserted that such an agreement was against the public policy of keep-

ing natural parents with their children.

Public policies of keeping children with their “natural parents” and de-

termining the best interest of the child are no less relevant to a gestational

surrogacy contract than to the traditional surrogacy contract at issue in Baby

In A.H.W. v. G.H.B., the court confronted a situation where both in-

53. In re Baby M, 537 A.2d 1227, 1246–47 (N.J. 1987), superseded in part by statute,

New Jersey Gestational Carrier Agreement Act, 2018 N.J. Laws 18.

54. Id. at 1234; Rosecky v. Schissel, 833 N.W.2d 634, 637 (Wis. 2013).

55. In re Baby M, 537 A.2d at 1234–35.

56. Steven M. Recht, Note, “M” is for Money: Baby M and the Surrogate Motherhood

Controversy, 37 AM. U. L. REV. 1013, 1035 (1988).

57. In re Baby M, 537 A.2d at 1234. The court stated that the purpose of the adoption

statutes that bar paying money to a child’s mother was to protect both the child and mother.

Id. at 1241–42.

58. Id. at 1248; see also Munyon, supra note 50, at 732–33. A child conceived pursuant

to a surrogacy contract can, and probably should, be viewed as a third-party beneficiary.

59. In re Baby M, 537 A.2d at 1246–47.

60. Id. at 1248 (viewing the contract more as one for goods, i.e. “the baby,” than one for

the services of gestation).

61. Id.

62. Id. at 1246–47.

63. A.H.W. v G.H.B., 772 A.2d 948, 953 (N.J. Super. Ct. Ch. Div. 2000). The court

opines on the importance not just of genetics, but the process of carrying a baby itself. Id.

The “endocrine cascade” and nutrient exchanges, among other things, appear to support that

there is an interest that the state’s public policy is meant to protect beyond the genetic con-

nection of a natural mother and child. Id.

134 UA LITTLE ROCK LAW REVIEW [Vol. 43

tended parents were genetically related to the child.

Unlike the traditional

surrogate in Baby M, the gestational carrier in A.H.W. was not fighting for

the child and instead joined the intended parents in a motion to terminate her

own parental rights in a pre-birth order.

However, the court cited important

developments that happen at birth to support the policy that a woman could

not be forced to surrender her child and that she must wait seventy-two

hours after birth to voluntarily do so.

B. The Possibility of Exploitation: Baby M and Feminists Agree

Another argument against surrogacy contracts is the potential for ex-

ploitation of the would-be surrogates.

Proponents of this argument fear

compensation paid to surrogates will be a coercive force ushering women

into a situation where their bodies become commodities.

Some liken the

surrogacy contract to prostitution of the womb.

Feminist scholar Andrea

Dworkin argues that the surrogate is not able to express her own will ade-

quately due to power structures inherent in surrogacy agreements that favor

the male party.

Taken to its logical conclusion, Dworkin’s argument im-

plies that enforcing surrogacy agreements reduce women to nothing more

than their reproductive capacity.

Dworkin’s argument carries equal force with both traditional and gesta-

tional surrogacy contracts. It stands to reason that a primary concern (if not

the determining factor) when choosing a surrogate is her ability to carry the

child to term, whether or not she supplies the egg.

Additionally, from a

socioeconomic standpoint, the type of surrogacy contract likely has little

bearing on who becomes a surrogate.

No matter the type of contract, in-

tended parents have an incentive to find someone not only willing to per-

form the service, whether or not for money, but also least likely to keep the

child. Given the possibility of a dispute arising with a surrogate claiming

64. Id. at 949.

65. Id. at 953.

66. Id. at 954 (The term “natural parent” as used in Baby M. and the public policy con-

cerns raised in that case are therefore relevant even when the surrogate lacks a genetic con-

nection to the child.).

67. Recht, supra note 56, at 1024–25.

68. Connor Cory, Note, Access and Exploitation: Can Gay Men and Feminists Agree on

Surrogacy Policy?, 23 GEO. J. POVERTY L. & POL’Y 133, 146 (2015).

69. ANDREA DWORKIN, RIGHT WING WOMEN 182–88 (1983) (articulating two economic

models of male control over women, the farming model and the prostitution model, surrogacy

fitting into the latter and, at least arguably, both models).

70. Id. at 182–83.

71. See id. at 187.

72. See id. at 187–88.

73. See Recht, supra note 56, at 1024 (discussing role of class in surrogacy arrange-

ments).

2020] BREACH BABY 135

parenthood under presumptions of birth, genetics, or both, intended parents

may seek potential surrogates that would be at a severe disadvantage in a

determination of the best-interests-of-the-child.

Scholars have also advanced comparisons to human trafficking as an

argument against surrogacy contracts.

Their premise is that surrogacy is no

more than black market adoption.

However, this argument ignores the fact

that the intent of the parties is different with a surrogacy contract than it is

with an adoption.

In a surrogacy contract, the parties are contracting not

for a fully formed baby but the services to create one.

Therefore, the con-

cerns are wholly different than those present in an adoption.

Similar to the prostitution argument, the human trafficking argument

applies equally to all surrogacy contracts, regardless of the genetic relation-

ship between the child and the parties. The purpose of the transaction is im-

portant here.

No matter the genetic relationship of the parties to the child,

the purpose of the contract is to secure the services required to bring the

child into existence, not the child itself.

C. The Impossibility of Informed Consent

Opponents argue that a surrogate mother cannot give informed consent

because she cannot predict how strong her bond with the resulting child will

be.

At least one court has explicitly viewed hormonal and emotional

changes during pregnancy and shortly after birth as a justification not to

enforce a surrogacy contract.

The court in A.H.W. confronted a situation

where the surrogate had previously given birth to a child of her own and was

actually willing to surrender the child under the surrogacy contract.

How-

ever, the court held she could not surrender the child until seventy-two hours

74. See In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893, 902–03 (Cal. Ct. App. 1994).

The surrogate’s family issues in Moschetta may be used against her. Knowing this, intended

parents may intentionally seek out people who are likely to lose should they challenge custo-

dy.

75. Jennifer S. White, Gestational Surrogacy Contracts in Tennessee: Freedom of Con-

tract Concerns & Feminist Principles in the Balance, 2 BELMONT L. REV. 269, 295 (2015).

76. Id.

77. Id.

78. Id.

79. Id.

80. Id.

81. In re Baby M, 537 A.2d 1227, 1248 (N.J. 1987), superseded in part by statute, New

Jersey Gestational Carrier Agreement Act, 2018 N.J. Laws 18; Munyon, supra note 50, at

719.

82. A.H.W. v. G.H.B., 772 A.2d 948, 953 (N.J. Super. Ct. Ch. Div. 2000) (discussing

the endocrine cascade and its importance not just to the child but to the mother’s bond as

well).

83. Id.

136 UA LITTLE ROCK LAW REVIEW [Vol. 43

after birth.

The court justified its decision in part because, at birth, the

mother may still develop a bond with the child.

Though the A.H.W surro-

gate had previously been pregnant and likely knew and understood the emo-

tional attachments involved, the court fashioned its rule to protect a woman

who had no idea what the process would be like.

A.H.W. concerned a gestational contract.

However, there is little dif-

ference in the concerns the court noted when a traditional surrogacy contract

is at issue. This is because the biological processes are identical regardless

of the genetic connection.

No matter what the source of the genetic materi-

al, the womb provides the same function.

The surrogate does not serve as a

mere incubator.

The surrogate provides the nutrients, proper hormones for

brain development, and a protective immune system during critical stages in

development.

The surrogate’s body, by supplying all the necessary build-

ing materials to create the baby, provides at least implicit support for the

holding in A.H.W., no matter the genetic relationship between surrogate and

baby.

D. Statutory Barriers to Enforcement

Finally, statutory barriers to the enforcement of surrogacy contracts ex-

ist in many states.

The courts in Baby M, A.H.W., and a host of other cases

were not working off a blank slate, even when the issue was one of first im-

pression.

Adoption statutes often state that a mother cannot terminate her

parental rights by agreeing to adoption until a certain time after the birth.

84. Id. at 954.

85. Id. at 953–54 (denying a pre-birth order to terminate the parental rights of the surro-

gate on the basis of endocrine changes that happen up to and immediately following birth).

86. See id.

87. Id. at 953.

88. See R. Brian Oxman, Maternal-Fetal Relationships and Nongenetic Surrogates, 33

JURIMETRICS J. 387, 389 (1993).

89. See id. at 394.

90. Id.; A.H.W., 772 A.2d at 953. The court acknowledges Oxman’s point. Id. The gesta-

tional mother contributes significantly to the development of the child such that two genet-

ically identical zygotes carried in different women would develop to be different human

beings. Id. See also Oxman, supra note 88, at 394.

91. Oxman, supra note 88, at 395.

92. See id.; see also A.H.W., 772 A.2d at 953.

93. Munyon, supra note 50, at 719.

94. See, e.g., In re Baby M, 537 A.2d 1227, 1240 (N.J. 1988), superseded in part by

statute, New Jersey Gestational Carrier Agreement Act, 2018 N.J. Laws 18; A.H.W., 772

A.2d at 954.

95. See, e.g., A.H.W., 772 A.2d at 954 (discussing New Jersey adoption statute allowing

parental rights terminations no sooner than seventy-two hours after birth).

2020] BREACH BABY 137

Likewise, statutes prohibiting the exchange of money in exchange for a ter-

mination of parental rights may invalidate surrogacy agreements.

The primary goals of adoption statutes are consistency and security of

the minor children.

However, adoption statutes provide inadequate guid-

ance in dealing with any type of surrogacy contract. Unlike in an adoption,

in surrogacy situations the child in question would not exist but for the in-

tent of the parties to enter the contract, regardless of the genetic relationship

between the child and the parties to the contract.

Likewise, statutes that

prohibit selling children do not directly apply to any type of surrogacy con-

tract because the payments are expressly not for the child but to reimburse

for expenses and pain and suffering during pregnancy.

IV. STATES DIFFERENTIATE BETWEEN TRADITIONAL AND GESTATIONAL

SURROGACY, CREATING PROBLEMS

The opposition to enforcing surrogacy contracts stems from the context

of a traditional surrogacy,

100

but gestational surrogacy contracts have been

better received in some courts.

101

Gestational surrogacy is different because

the child is not genetically related to the surrogate.

102

However, this ap-

proach creates additional problems, such as how to apply competing pre-

sumptions of parentage in potential mothers.

103

A. The Calvert Rule: The Inefficiency of Competing Presumptions

California was the first state to recognize a surrogacy contract as en-

forceable in Johnson v. Calvert.

104

In Calvert, the court applied the presump-

96. In re Baby M, 537 A.2d at 1240. If one views the transaction as the purchase of a

human being, the statute will apply regardless of genetic consanguinity. Likewise, if the

contract is seen as one not for a human being but for gestational services, such a statute

would not apply regardless of consanguinity. The purpose of the contract really matters here.

97. See Susanna Birdsong, Comment, Voiding Motherhood: North Carolina’s Short-

sighted Treatment of Subject Matter Jurisdiction in Boseman v. Jarrell, 21 AM. U.J. GENDER

SOC. POL’Y & L. 109, 122–23 (2012).

98. See In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280, 291 (Cal. Ct. App. 1998).

99. See, e.g., Johnson v. Calvert, 851 P.2d 776, 784 (Cal. 1993).

100. In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893, 894 (Cal. Ct. App. 1994).

101. See, e.g., Calvert, 851 P.2d at 777. But see A.H.W., 772 A.2d at 953 (refusing to

enforce gestational surrogacy contract).

102. Calvert, 851 P.2d at 784.

103. Presumptions of parentage are legal fictions created to assist in determining paterni-

ty. Normally these would not apply to mothers because it is obvious who the mother is. With

surrogacy, however, there are often two competing claims of motherhood. Applying a set of

presumptions on the surface is an easy way to settle the dispute.

104. Calvert, 851 P.2d at 784–85.

138 UA LITTLE ROCK LAW REVIEW [Vol. 43

tions of birth and genetics as stated in California’s parentage act.

105

The

court explains the act was passed to determine parent-child relationships

when such relationships are in dispute.

106

The act states maternity may be

established by giving birth.

107

The act also allows for provisions applicable

to fathers to be used in determining maternity where practicable.

108

The

court reasoned that the genetic presumption of paternity was relevant to de-

termining maternity as well.

109

The Johnsons had the genetic presumption in

their favor, and their surrogate naturally had the birth presumption.

110

The

statute did not expressly say which presumption to weigh more heavily, so

the court weighted each equally and looked for a tiebreaker.

111

The court

settled on the parties’ intent as the tiebreaker that determined legal

parenthood when genetic relationship and the birth presumption are not

vested in the same woman. Thus, the court enforced the agreement against

the surrogate.

112

Using the intent of the parties as a tiebreaker only when the genetic

presumption and birth presumption are not present in the same woman can

only resolve disputes in two out of the four types of surrogacy contacts. As

California courts have noted, the rule can resolve conflicts in both possible

types of gestational contracts.

113

However, the rule is not applicable to either

type of traditional surrogacy contract.

114

With traditional surrogacy, the sur-

rogate will always possess both presumptions.

105. Id. at 781–82.

106. Id. at 779.

107. Id. at 780.

108. Id.

109. Id. at 781.

110. Calvert, 851 P.2d. at 779–81.

111. Id. at 789 (Kennard, J., dissenting). The dissent criticized the majority by character-

izing their solution as an “ill-advised” tiebreaker, rather than considering the best interests of

the child. Id. However, the majority noted that the intent of the parents as evidenced by such

contracts will often be coterminous with the best interest of the child. Id. at 783.

112. Id. at 786.

113. Id.; In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280, 291 (Cal. Ct. App. 1998) In re

Buzzanca confronts the possibility that no one is genetically related to the child, and therefore

no competing presumption exists. However, the decision stands for the proposition that when

the child is created pursuant to a contract and that child is not genetically related to the surro-

gate, intent controls.

114. In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893, 900 (Cal. Ct. App. 1994). The

court construed the holding in Calvert to limit it to gestational contracts because California’s

Parentage Act expressly covers a traditional surrogacy. Id. This creates its own problem

where intended parents have an incentive to find a traditional surrogate who could not win a

custody dispute on a best-interest-of-the-child standard.

2020] BREACH BABY 139

B. The Calvert/Moschetta Dichotomy and Inadequate Legislative Efforts

There are two potential problems a court could face using the Calvert

rule. First, a surrogate may decide to keep the child and the intended parents

would have no claim to parentage unless the intended parents are genetically

related to the child. Second, the Calvert rule leaves open the possibility of

intended parents doing precisely what the intended parents in Buzzanca at-

tempted to do, leaving the surrogate as the only legal parent.

115

California seems to have recognized this possibility and added a provi-

sion to their family code to address the weakness left open in Calvert.

116

However, while the provision does establish a claim to a parent-child rela-

tionship for all types of intended parents, the provision does nothing to clari-

fy what the ultimate outcome of a dispute should be.

117

California’s surroga-

cy statute codifies that the intended parents are the sole legal parents of a

gestational contract, but it does not address traditional surrogacy, likely

leaving the reasoning in Moschetta to control the outcome of traditional

contracts in dispute.

118

Other legislatures have distinguished the gestational carrier agreement

and passed bills to enforce such contracts.

119

Yet some of these same states

either have laws specifically outlawing traditional surrogacy

120

or case law

that still prevents the enforcement of a traditional surrogacy contract.

121

Many other states have legislation and case law that fail to articulate clearly

if or how courts should distinguish between the two types of surrogacy con-

tracts.

122

This situation creates uncertainty for both intended parents and

115. In re Buzzanca, 72 Cal. Rptr. 2d at 284. Because all the usual presumptions of par-

entage are vested in the surrogate and potentially her spouse, the intended parents may occu-

py a position of a third party. With no genetic connection between the intended parents and

the child, the court would need to fashion a rule specific to this type of surrogacy contract.

116. CAL. FAM. CODE § 7613 (Deering 2020).

117. See id.

118. Id. § 7962; In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893, 900 (Cal. Ct. App.

1994) (holding intent only governed in a gestational contract). Because the statute does not

factor in intent for traditional surrogacy the way it does with gestational surrogacy, the rea-

soning of the Moschetta court is likely still good law.

119. N.D. CENT. CODE § 14-18-08 (2019); New Jersey Gestational Carrier Agreement

Act, 2018 N.J. Laws 18 (codified in part at N.J. STAT. ANN. §§ 9:17-60 to -68 (2020) and

amending other scattered sections of N.J. STAT. ANN. Title 9 and N.J. STAT. ANN. § 26:8-28).

120. See, e.g., N.D. CENT. CODE § 14-18-05.

121. See In re Baby M, 537 A.2d 1227, 1234 (N.J. 1988), superseded in part by statute,

New Jersey Gestational Carrier Agreement Act, 2018 N.J. Laws 18 (Holding has been super-

seded only with respect to gestational surrogacy contracts where surrogate is not genetically

related to the child.).

122. Darra L. Hofman, “Mama’s Baby, Daddy’s Maybe:” A State-by-State Survey of

Surrogacy Laws and Their Disparate Gender Impact, 35 WM. MITCHELL L. REV. 449, 454

(2009).

140 UA LITTLE ROCK LAW REVIEW [Vol. 43

potential surrogates. States can easily avoid this uncertainty if they deter-

mine their surrogacy policy and provide a clear statement on how the en-

forcement should be adjudicated.

V. SURROGACY CONTRACTS SHOULD BE ENFORCED EQUALLY WITHOUT

REGARD TO GENETICS

The enforcement, or lack of enforcement, of both traditional and gesta-

tional surrogacy contracts should be equal. Courts should adjudicate dis-

putes without regard to the genetic connection between the parties and the

resulting children. Doing so will better address the government’s interest

than the current regime of treating the contracts differently based upon the

parties’ genetic relationship to the child.

A. Public Policy Is Best Served by Treating Traditional and Gestational

Contracts Equally

Distinguishing enforcement of surrogacy contracts based on genetics

might seem appropriate for a public policy that seeks to ensure children are

kept with their “natural parents.”

123

However, this legislative and judicial

scheme ignores the fact that a gestational surrogate is more than an Easy-

Bake Oven.

124

The child gets integral parts of its structure, brain develop-

ment and other features not just from the genes encoded at conception, but

also from the endocrine cascade from the gestational carrier.

125

From the

perspective of biology, traditional and gestational surrogacy contracts are

more alike than courts admit.

Additionally, the disfavored treatment of traditional surrogacy con-

tracts relative to their gestational counterparts minimizes an important as-

pect of considering the best interest of the child as compared to a gestational

carrier.

126

Protecting equally the interests of parties to traditional and gesta-

tional surrogacy contracts recognizes that the interest of the child is the

same whether that child is born pursuant to a traditional or gestational sur-

rogate, and that this interest is best served by clear rules regarding equal

123. See In re Baby M, 537 A.2d at 1246–47.

124. Oxman, supra note 88, at 394.

125. Id. at 398. The endocrine cascade is the series of hormones, vital to a baby’s devel-

opment, which is provided by a pregnant woman.

126. Johnson v. Calvert, 851 P.2d 776, 783 (Cal. 1993) (noting the importance of inten-

tionally entering into the creation of a child.); In re Marriage of Buzzanca, 72 Cal. Rptr. 2d

280, 293 (Cal. Ct. App. 1998) (discussing importance of intent to parent). Interests of the

child and the interests of parents who intend from the outset to conceive and raise that child

are often significantly correlated. Calvert, 851 P.2d at 783.

2020] BREACH BABY 141

enforcement.

127

It follows that if courts enforce the intent of a gestational

contract as good public policy, the enforcement of the intent of a traditional

surrogacy contract would likewise be good public policy.

B. Equal Enforcement of Surrogacy Contracts Would Reduce Exploitation

One criticism of surrogacy is that the power difference between the

parties is so great that the contracts are exploitative by their very nature.

128

As noted earlier, surrogacy is sometimes compared to prostitution.

129

While

this criticism is perhaps not unfounded, equal enforcement will decrease the

possibility of exploitation, reducing both the coercive impact of surrogacy

contract and the incentive to seek disadvantaged surrogates.

1. Reducing the Coercive Impact of Surrogacy Contracts

Equal enforcement of surrogacy contracts will reduce the possibility of

exploitation of surrogate mothers. Money, not the genetic connection to the

child, makes the contract potentially exploitative.

130

Poorer women are most

susceptible to the promise of potentially large fees (relative to their assets or

earning power).

131

The burdens placed on the surrogate are nearly identical

whether the egg is theirs or not.

132

If any difference is present, it is that ges-

tational surrogacy, the more acceptable type of surrogacy contract, requires

more extensive medical procedures.

133

Equal enforcement of traditional and

gestational surrogacy contracts will reduce the coercive aspects of the con-

tracts by giving surrogates some choice in the type of arrangement they en-

ter. If the surrogate knows what she can expect when considering whether to

assist the intended parents, she is free to choose between using her own egg

or submitting to more extensive medical intervention.

127. Melissa Ruth, Enforcing Surrogacy Agreements in the Courts: Pushing for an In-

tent-Based Standard, 63 VILL .L. REV. TOLLE LEGE 1, 18 (2018) (Allowing a surrogate to

change her mind until sometime after the birth of the child is not in the best interest of the

child; rather it is in the child’s best interest that parentage is known at birth.).

128. See Dworkin, supra note 69, at 182–88.

129. Id. at 187–88.

130. Cory, supra note 68, at 155.

131. John A. Robertson, Embryos, Families, and Procreative Liberty: The Legal Struc-

ture of the New Reproduction, 59 S. CAL. L. REV. 942, 1028 (1986).

132. Recht, supra note 56, at 1025 (noting behavioral restrictions, medical visits, and the

risk of complications, all common to every surrogacy.).

133. See In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893, 894 (Cal. Ct. App. 1994)

(noting that traditional surrogacy is easier and less expensive); see also Boardwine v. Bruce,

88 Va. Cir. 218, 219 (Va. Cir. Ct. 2014) (describing an “artificial insemination” performed at

home with no medical intervention whatsoever). Such a simple approach is not possible with

a gestational surrogate.

142 UA LITTLE ROCK LAW REVIEW [Vol. 43

2. Reducing the Incentive to Seek Disadvantaged Surrogates

Equal enforcement reduces the incentive to seek out disadvantaged

women who are likely to lose in a custody battle. The less enforceable tradi-

tional surrogacy contracts still result in the birth of a child, and courts must

consider that child’s best interest.

134

If traditional surrogacy contracts are

unenforceable, or enforceable only after a period of time post-birth,

135

in-

tended parents have an incentive to seek out a surrogate who is less able to

care for the resulting child even if she wanted to. Courts would then need to

conduct a best-interest-of-the-child analysis absent considerations stemming

from the contract, like the court did in Moschetta.

136

The primary caretaker

doctrine

137

is pertinent here because an infant needs a much greater degree of

care by the parent for its development than an older child.

138

This means that

intended parents would be best served by seeking out women who would

have difficulty providing the care that an infant needs. If courts enforced

intent in traditional surrogacy as they enforce it in gestational contracts, the

incentive to exploit disadvantaged women would be largely reduced, if not

altogether eliminated. Additionally, the surrogate is protected because she

knows that the contract is enforceable against the intended parents.

C. Equal Enforcement of Surrogacy Contracts Promotes Judicial

Efficiency

Equal enforcement of traditional surrogacy contracts will streamline

the judicial process and provide better guidance to both intended parents and

potential surrogates. Such streamlining is in the best interest of the children

born of these agreements.

139

As litigation ensues, the child is bonding with

134. See In re Moschetta, 30 Cal. Rptr. 2d at 902–03 (remanding to trial court to deter-

mine the best interest of the child without considering the surrogacy contract).

135. See, e.g., UNIF. PARENTAGE ACT § 814(a)(2) (UNIF. LAW COMM’N 2017).

136. See In re Moschetta, 30 Cal. Rptr. 2d at 903; In re Baby, 447 S.W.3d 807, 828

(Tenn. 2014).

137. See Kathryn L. Mercer, A Content Analysis of Judicial Decision-Making—How

Judges Use the Primary Caretaker Standard to Make a Custody Determination, 5 WM. &

MARY J. WOMEN & L. 1, 5 (1998) (“The primary caretaker standard focuses on and awards

custody to the parent who provided the physical care and socialization for the child, provided

he or she is a fit parent.”).

138. See id. With a newborn, a surrogate who would require greater degrees of assistance

with the daily needs of the child would be at a severe disadvantage in a custody battle with

intended parents who are more able to care for the child’s needs themselves.

139. Johnson v. Calvert, 851 P.2d 776, 782 n.10 (Cal. 1993) (noting children born pursu-

ant to any type of surrogacy contract are not served by potentially protracted litigation to

determine parentage). One additional consideration: by signing the agreement, the surrogate

has at least arguably conceded that granting custody to the intended parents is in the best

interest of the child. Id.

2020] BREACH BABY 143

someone.

140

That person is becoming the child’s psychological parent in the

midst of what may be a long litigation process.

141

If a court later determines

that the child’s best interest would be best served by a party other than the

primary custodian who took care of the child during the dispute, it follows

that at least some harm will come to the child due to being removed from

that psychological parent.

142

Equal enforcement benefits the parties to the contract as well. Forum

shopping is an unfortunate side-effect of inconsistent surrogacy laws.

143

The

inconsistencies that exist from one state to another are somewhat outside the

scope of this note, other than to suggest that states can address a significant

part of the forum-shopping problem by creating a policy that treats gesta-

tional and traditional surrogacy contracts equally.

VI. THE THREE POSSIBLE SOLUTIONS TO THE EQUAL ENFORCEMENT

PROBLEM

Equal enforcement of traditional and gestational surrogacy contracts is

appropriate because the contracts contain little factual difference in their

terms and implicate the same policy considerations. Enforcing them differ-

ently creates additional problems the court must solve. Equal enforcement

could take one of three possible models: (1) states could declare all surroga-

cy contracts unenforceable or illegal;

144

(2) states could enforce the parties’

intent to its full extent;

145

or (3) states could substantially enforce the surro-

gacy agreements by enforcing the intent of the parties with respect to the

custody and placement provisions but not terminate parental rights as an

operation of law.

146

140. Mercer, supra note 137, at 6.

141. Id.

142. Id. at 7.

143. Brett Thomaston, Comment, A House Divided Against Itself Cannot Stand: The

Need to Federalize Surrogacy Contracts as a Result of a Fragmented State System, 49 J.

MARSHALL L. REV. 1155, 1178 (2016).

144. See N.D. Cent. Code § 14-18-05 (Lexis Advance through all acts approved by the

governor through the end of the 2019 Regular Legislative Session); See N.Y. DOM. REL. LAW

§ 122 (Consol. 2019). New York amended its surrogacy law to allow for only gestational

surrogacy contracts beginning February 15, 2021. This invites the very confusion this note

has pointed out exists in other states. It is at least arguable that this is not an improvement

because of the issues discussed earlier in this note.

145. See Johnson v. Calvert, 851 P.2d 776, 777–78 (Cal. 1993) (upholding the trial

court’s termination of parental rights pursuant to the agreement).

146. See Rosecky v. Schissel, 833 N.W.2d 634, 653–54 (Wis. 2013).

144 UA LITTLE ROCK LAW REVIEW [Vol. 43

A. Declaring Surrogacy Unenforceable or Illegal: The Least Beneficial

Approach

Of the three options, not enforcing the contracts is the most problemat-

ic. States that merely declare the contracts unenforceable will still have to

decide custody, placement, and parentage for surrogate-born children.

147

Determining the best interest of the child on a case-by-case basis, with no

other guidance, may result in a child being removed from his or her psycho-

logical parent. A state using this approach must accept that it will harm

some children by litigating this way.

It is within a state’s right to criminalize entering into surrogacy con-

tracts under its police power.

148

While that certainly is a deterrent, this ap-

proach does not account for the children of those that choose to enter into

these agreements anyway, and it may arguably may do more harm by im-

posing criminal sanctions on the child’s parents. Although likely the least

beneficial option, criminal sanctions for entering surrogacy contracts do

provide the kind of clear statement of policy that is so needed in this area of

the law.

149

B. Full Enforcement: Terminating Surrogates’ Parental Rights as an Oper-

ation of Law

Any intended parent would prefer full enforcement of surrogacy

agreements, including the parental rights termination clause. This approach

has the advantage of ensuring the child is with the party who intended to

raise it.

150

Additionally, it is the most judicially efficient in that intended

parents should be able to obtain a pre-birth order so long as the procedures

are followed.

151

While this approach is the most advantageous for the intended parents,

enforcing the contracts in this way does little to protect a surrogate’s unique

interests. While protections could be in place to limit the possibility of unin-

147. NEB. REV. STAT. § 25-21,200 (2020); MICH. COMP. LAWS §722.861 (2019). The

language of both statutes indicates the courts would engage in the typical custody dispute

proceedings.

148. See, e.g., MICH. COMP. LAWS § 722.859 (2019).

149. See Hofman, supra note 122, at 454.

150. See Calvert, 851 P.2d at 782 (quoting John Lawrence Hill, What Does It Mean to Be

a “Parent”? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U. L. REV. 353

(1991)) ((noting that the “prime mover” is the intended parent in surrogacy). At the pre-

conception stage, the surrogate has no intent to raise the child absent the possibility of decep-

tion that would amount to fraud.

151. See CAL. FAM. CODE § 7962(f)(2) (Deering 2020).

2020] BREACH BABY 145

tended emotional attachments,

152

the process all surrogates go through, re-

gardless of genetic connection to the child, has profound influence on both

child and surrogate.

153

Enforcing the contracts equally in this way is a step in

the right direction, but it may not present the proper balance of interests.

C. Substantial Performance: The Balanced Approach

What this note describes as substantial performance, if applied equally,

presents the most desirable balance of considering the best interest of the

children, the expectation interest of the intended parents, and the interests of

the surrogates. Substantial performance in this context recognizes that the

point of a surrogacy contract is to allow the intended parents the opportunity

to raise a child. This goal can be accomplished without an automatic termi-

nation of the surrogate’s parental rights so long as custody is placed with the

intended parents from birth. By giving automatic effect to the custody and

placement provisions of both types of contracts, the court preserves the in-

tended parents’ goal of raising a child.

154

Such a solution likewise respects

the best interest of the children by placing them in the custody of the party

who always wanted them.

155

The Rosecky case provides a template for how

the approach should work.

156

Moreover, the court’s reluctance to automatically terminate the surro-

gate’s parental rights will protect the surrogate’s interest. This also goes

toward the best interest of the child by giving the surrogate standing, not

only in contract law but also in family law, to pursue increased visitation

157

or even gain an award of primary custody.

158

Giving the surrogate the ability

to seek visitation or custody advances the best interest of the child in at least

two ways. First, visitation exposes the child to another adult who will love

and care for them. Second, it acknowledges the possibility of the occasional

152. See, e.g., New Jersey Gestational Carrier Agreement Act, 2018 N.J. Laws 18 (codi-

fied in part at N.J. STAT. ANN. §§ 9:17-60 to -68 (2020) and amending other scattered sec-

tions of N.J. STAT. ANN. Title 9 and N.J. STAT. ANN. § 26:8-28).

153. A.H.W. v G.H.B., 772 A.2d 948, 953 (N.J. Super. Ct. Ch. Div. 2000); see generally

Oxman, supra note 88.

154. See generally Rosecky v. Schissel, 833 N.W.2d 634 (Wis. 2013). The point of a

surrogacy contract is for a couple to have a child that they can raise as their own. At mini-

mum, the expectation of the intended parents is to have physical and legal custody.

155. Calvert, 851 P.2d at 782.

156. See generally Rosecky, 833 N.W.2d 634.

157. See Troxel v. Granville, 530 U.S. 57, 67 (2000). If parental rights are terminated,

whether voluntarily or by operation of law, the surrogate would occupy the position of a third

party and thus lack standing to sue for visitation.

158. Such an award should only be available if the surrogate can make a showing of

unfitness of the intended parents. By placing the burden on the surrogate to show not her

fitness but the unfitness of the intended parents, there would be little reason to seek out a

surrogate that might be judged unfit if a dispute arose.

146 UA LITTLE ROCK LAW REVIEW [Vol. 43

intended parent turning out to be unfit. It gives the surrogate a chance to

obtain custody instead of having the child either stay in the unfit home or

end up in the foster system.

The substantial enforcement approach also has the advantage of being

similar to an approach courts already accept.

159

Under this approach the sur-

rogacy contract functions as an agreement akin to one agreed upon in a cus-

tody dispute. If two potentially fit parents can agree that it is best for the

child if primary custody is vested in a particular person, it should not matter

that such an agreement is reached prior to birth or even conception of that

child.

VI. CONCLUSION

Parenthood is the single most life-changing event most people will ex-

perience. It is fundamentally unfair that some are incapable of experiencing

the birth of their own child. Surrogacy provides a partial solution to the

problem. By choosing a method of enforcement for surrogacy contracts and

applying it equally, no matter the type, states go a long way toward assisting

their citizens in preparing for and eventually having families. Recognizing

that there is no perfect solution that will eliminate all problems associated

with surrogacy contracts, states should take the balanced approach of sub-

stantial enforcement articulated in Rosecky. By utilizing the substantial en-

forcement method described in this note, courts can safeguard the interests

of the child and protect the unique interests of the surrogate, while still giv-

ing effect to the intent of the parties and the expectation of the intended par-

ents. However, states can only accomplish these goals if they enforce tradi-

tional and gestational contracts equally.

Equal enforcement of both traditional and gestational surrogacy con-

tracts under the substantial enforcement model as applied by the Rosecky

court safeguards the interest of the child by not terminating the surrogate’s

parental rights automatically, leaving a final determination for the court. A

presumption in favor of the intended parents adds stability for the child in

early life by shortening litigation and awarding custody to the intended par-

ents who desired the child from the beginning. Finally, the surrogate will

retain standing to challenge the intended parents if she believes they are

unfit.

Equal enforcement protects the surrogate by increasing her choice in

how invasive a procedure she desires and providing a greater knowledge of

159. Wesley Mack Bryant, Solomon’s New Sword: Tennessee’s Parenting Plan, The Role

of Attorneys, and the Care Perspective, 70 TENN. L. REV. 221, 227 (2002) (noting that courts

in Tennessee usually accept agreed parenting plans without much review because they as-

sume an agreed plan is in the best interest of the child).

2020] BREACH BABY 147

how courts will adjudicate a potential dispute. If both types of contracts are

enforceable, then she may choose what she is willing to put her body

through for the sake of the surrogacy agreement. Additionally, the intended

parents no longer have an incentive to seek out overly disadvantaged women

to serve as surrogates if the jurisdiction enforces both types of contracts

equally. Under the substantial enforcement model, the surrogate in both

types of contracts would not lose parental rights as an operation of law and

could retain those rights if desired.

Finally, the equal enforcement helps intended parents by clearing up

the tangled mess of rules across the various states, or even within their own

state. Intended parents would no longer need to fear losing custody of the

child merely because their DNA is different than the child’s. Even substan-

tial enforcement protects the primary expectation interest of the intended

parents—the ability to take their child home to raise.

It is time for states to decide where they stand on surrogacy generally.

Courts and legislatures must recognize genetics are not a significant enough

factor to warrant treating the contracts differently. Substantial enforcement

as articulated in this note provides a solution that addresses the problems

associated with surrogacy. This approach would allow states to fashion a

rule that enforces both kinds of contracts while balancing the interests of all

parties involved.

James M. Gift*

* James Gift is a current J.D. Candidate at University of Arkansas at Little Rock Bow-

en School of Law. I would like to thank my wife, Melissa Gift, for her willingness to live

more or less as a single woman while I authored this note. I could not have done it without

your support.