The Updating of Baby M: A Confused Jurisprudence Becomes More Confusing
Posted: 6 Dec 2017
Date Written: 2016
Abstract
While there appears to be a trend to enforce gestational but not traditional surrogacy agreements, several recent decisions cast doubt on that understanding. This article discusses the differences between gestational and traditional surrogacy as well as Baby M. and Johnson v. Calvert, which together seemed to offer a possible approach to the conditions under which such contracts should be enforceable. The article then addresses some of the ways in which the legal approaches to the enforcement of gestational and genetic surrogacy contracts have blurred, creating the potential for harm to families and children. The article concludes that unless courts deciding surrogacy disputes take better account of some of the foreseeable results of their decisions, these courts may unwittingly bring about results that almost no one would prospectively endorse.
Keywords: Surrogacy, Genetic, Traditional, Gestational, Visitation, Custody
JEL Classification: K10
Suggested Citation: Suggested Citation