Traditional Surrogacy Contracts, Partial Enforcement, and the Challenge for Family Law

Surrogacy remains controversial. Several states ban commercial surrogacy while several other states permit it, subject to certain conditions. In addition, many state legislatures simply have not spoken to the legality of surrogacy agreements. Courts have addressed whether such contracts are enforceable in individual instances, either as a matter of public policy or, perhaps, because of a claimed breach of contract.

Part II of this Article traces the development of the jurisprudence regarding the enforcement of surrogacy agreements, noting how there seemed to be a consensus within the parameters set by state law. Part III addresses a few recent decisions in which traditional surrogacy contracts were enforced, in whole or in part. This Article concludes by noting some of the counterintuitive implications of these latter decisions and explaining how some of these undesirable effects might be avoided.