1. FEDERAL
REGULATION
AND
ENFORCEABILITY
OF
SURROGACY
CONTRACTS
SAVANNA
WILLIAMS
HADM3700
–
HEALTH
LAW
APRIL,
2015

2.
2
The practice of surrogacy is something that has been trivialized through popular media and movies like
Baby Mama; however, what many people do not realized is at the heart of this centuries old practice is a history of
heartache and legal issues. Surrogacy goes back hundreds of years, as women throughout the centuries have carried
children for other women, whether for monetary compensation or simply to assist a family member. The first
“modern” surrogacy did not occur until the 1970s, bringing the legal issues into the spotlight.1
Unfortunately, this
practice has evolved into a major social issue, as there is very limited legal regulation of the practice in the United
States, allowing for complicated questions of parental rights to arise. Due to the lack of federal regulation and
inconsistent statutory law, surrogacy contacts are rarely regarded as legally binding and enforceable. The purpose of
this analysis is to answer the following questions: should the practice of domestic surrogacy be regulated by federal
legislation? Should surrogacy contracts be legally binding and enforceable in all states? In order to sufficiently
examine these questions, this paper will focus first on the definition of surrogacy, legal issues regarding surrogacy,
and finally provide an answer to the proposed research question, including a suggestion for federal policy.
DEFINITION
OF
SURROGACY
Surrogacy is the practice of using a surrogate mother to carry and birth a child when an individual or couple
is unable to do this on their own.2
There are two primary types of surrogacy: traditional and gestational. Traditional
surrogacy is when “the surrogate acts as both the egg donor and as the actual surrogate for the embryo”3
and she is
impregnated using the biological father’s sperm with is injected using intrauterine insemination. Gestational
surrogacy is when “the embryo is actually created by using both the biological father's sperm and the biological
mother's egg through a process called in vitro fertilization.”4
Once the embryo is fertilized, it is then transferred into
the uterus of the surrogate, who will carry the pregnancy to full term.5
With the gestational option, the baby is not
biologically related to the surrogate at all.
FEDERAL
LAWS
ON
SURROGACY
Currently, there is an absence of federal laws regarding surrogacy in the United States, an issue that is
being brought to people’s attention on a national level. This lack of federal regulation has led to confusion as to

3.
3
whether surrogacy contracts are enforceable and legally binding or not. One of the most pressing issues halting the
federal regulation of surrogacy is the fact that individual states have the power to regulate family law. There are
many inconsistencies in the state regulation of surrogacy: some states prohibit surrogacy contracts, some have failed
to address the issue, and the District of Columbia has gone so far as to criminalized surrogacy contracts.6
Some
argue that this lack of federal legislation stems from two distinct view points, according to Susan Markens in her
book Surrogate Parenthood and the Politics of Reproduction: “our simultaneous exaltation of individual rights and
laissez-faire approach to the marketplace and our protective stance toward families.”7
Because there has historically
existed a strong presence of both Christian and conservative beliefs in the United States, many pieces of legislation
aim at keeping children with their birth parents. In addition to this, the subject of reproductive rights and alternative
or assisted reproduction options has been traditionally difficult to solve and adequately regulate to the satisfaction of
the majority of U.S. citizens.
Since the 1980s, there have been various legislative attempts to federally regulate the status of children
born by surrogacy, seeking to answer the question of who the child belongs to: the intended parents of the surrogacy
contract, the biological egg and/or sperm donor(s), or the birth mother. At the time, there existed a stringent national
sentiment that surrogacy contracts should be prohibited and surrogacy as a whole should be largely discouraged.8
This sentiment reflected the international regulation of surrogacy, as many countries banned surrogacy contracts or
the exchange of money for surrogacy services, including Canada, Australia, Germany, and Hong Kong.9
The
Surrogacy Arrangements Act of 1987 proposed to “[amend] the Federal criminal code to provide criminal penalties
for anyone who, on a commercial basis, knowingly makes, engages in, or brokers a surrogacy arrangement.”10
It
also proposed to “[amend] the Federal Trade Commission Act to provide criminal penalties for anyone who
advertises the availability of such an arrangement.”11
The Uniform Laws Commission12
drafted the Uniform
Parentage Act in 200013
– later revised in 2002 – which provides states with suggestions for statutory law regarding
various parentage issues. Sections 801-809 of the Act set up provisions for creating a valid surrogacy agreement.14
The Act is incredibly detailed; however, because it is a uniform act is it merely a suggestion for states to enact it.
Very few states have passed the Act as whole, which further propagates the issue of unclear judicial oversight
regarding surrogacy.

4.
4
MAJOR
CASES
ON
SURROGACY
While the practice of surrogacy of various forms dates back hundreds of years, even to the days of the
Bible, the first piece of litigation regarding surrogacy and surrogacy contracts occurred in the 1980s with the Baby
M case.15
In the Matter of Baby M was tried in the Superior Court of New Jersey16
and led to the first major
litigation regarding surrogacy. The facts of the case are as follows: in February 1985, William Stern and Mary Beth
Whitehead entered into a surrogacy contract17
whereby it was agreed that Mrs. Whitehead would provide a child to
the Sterns with Mr. Stern as the biological father via artificial insemination of his sperm.18
The contract stipulated
that Mrs. Whitehead would “carry the child to term, bear it, deliver it to the Sterns, and thereafter do whatever was
necessary to terminate her maternal rights so that Mrs. Stern could thereafter adopt the child.”19
Mrs. Stern was
likely not included as a party to the surrogacy contract in an effort to avoid being in violation of the baby-selling
statute of New Jersey.20
Prior to Baby M’s birth, Mrs. Whitehead expressed symptoms of depression, stating she was
not sure she could relinquish the baby.21
On March 27, 1986 Baby M was born and on March 30 she was turned
over to the Sterns, after which Mrs. Whitehead became emotionally distraught.22
The Sterns allowed Mrs. Whitehead
to have Baby M for a short period of time, fearing that Whitehead would commit suicide and expecting they would
get their child back; however, after four months Mrs. Whitehead would not return the child.23
Mr. Stern filed a complaint with the Superior Court of New Jersey24
to uphold the contract and seek that
Baby M was returned to the Sterns. The trial court held25
that the surrogacy contract was valid and that Baby M
must be surrendered to the Sterns in the baby’s best interest.26
Mrs. Whitehead appealed the decision to the Supreme
Court of New Jersey27
where the appellate court reversed the trial court’s holding.28
The surrogacy contract was
found to be invalid and against public policy.29
The exchange of money for the surrogacy agreement was illegal
under New Jersey Statute, N.J. Stat. Ann. § 9:3-54.30
The adoption of Baby M by Mrs. Stern was thus deemed
invalid, leaving Mrs. Whitehead as the legal mother31
; however, parental custody was granted to Mr. Stern.32
The case of Baby M was undoubtedly a landmark case for the issue of surrogacy. Had the holding of the
trial court33
not been reversed, there would have been legal precedent for surrogacy contracts to be legally
enforceable and for the intended parents in a surrogacy contract to have parental rights to the baby. Because the
Supreme Court of New Jersey reversed this decision34
, the court set precedent for surrogacy contracts to be
unenforceable and the exchange of money for surrogacy to be criminalized. The case of Baby M is just one instance

5.
5
in a history of confusing litigation that offers no clear rationale to whether surrogacy contracts are valid and
enforceable and whether the exchange of money for surrogacy is legal in the United States
A second major case regarding the issue of surrogacy contracts was tried in 1993 in the Supreme Court of
California.35
Interestingly, the holding of Johnson v. Calvert36
is directly opposite of that of the appellate court’s
holding in the Baby M case. The facts of the case are as follows:
“On
January
15,
1990,
Mark
[Calvert],
Crispina
[Calvert],
and
Anna
[Johnson]
signed
a
contract
providing
that
an
embryo
created
by
the
sperm
of
Mark
and
the
egg
of
Crispina
would
be
implanted
in
Anna
and
the
child
born
would
be
taken
into
Mark
and
Crispina's
home
"as
their
child."
Anna
agreed
she
would
relinquish
"all
parental
rights"
to
the
child
in
favor
of
Mark
and
Crispina.
In
return,
Mark
and
Crispina
would
pay
Anna
$
10,000
in
a
series
of
installments,
the
last
to
be
paid
six
weeks
after
the
child's
birth.
Mark
and
Crispina
were
also
to
pay
for
a
$
200,000
life
insurance
policy
on
Anna's
life.”37
This case is an example of gestational surrogacy, as Mrs. Johnson is not genetically related to the child in question
in any way. Throughout Mrs. Johnson’s pregnancy, the relationship between her and the Calverts deteriorated for
various reasons38
and in July 1990 Mrs. Johnson sent the Claverts a letter demanding the balance of her payments or
else she would not relinquish the child.39
Both the Calverts and Mrs. Johnson filed lawsuits seeking to be declared
the legal parents of the unborn child.40
Both suits were later consolidated and went to trial in October 1990, after the
child was born in September 1990.41
The trial court held that the Calverts were the baby’s “genetic, biological, and natural” parents, that Mrs.
Johnson had no parental claims to the child, and the surrogacy contract was enforceable.42
Mrs. Johnson appealed to
the Court of Appeal for the Fourth District, Division Three of California, and the appellate court affirmed the trial
court’s decision.43
The Supreme Court of California reviewed the case.44
Mrs. Johnson tried to argue that under the
Uniform Parentage Act,45
as a surrogate mother she was “natural mother” and thus had parental rights to the child.
The Supreme Court of California stated:
“We
conclude
that
although
the
Act
recognizes
both
genetic
consanguinity
and
giving
birth
as
means
of
establishing
a
mother
and
child
relationship,
when
the
two
means
do
not
coincide
in
one
woman,
she
who
intended
to
procreate
the
child-­‐-­‐that
is,
she
who
intended
to
bring
about
the
birth
of
a
child
that
she
intended
to
raise
as
her
own-­‐-­‐is
the
natural
mother
under
California
law.”46

6.
6
Essentially, the court stated that Mrs. Calvert is the natural mother of the baby in question by default because Mrs.
Johnson did not fulfill both requirements of the Act – being genetically related and birthing the baby – and Mrs.
Calvert is the one with the initial intent to raise the baby. The At the conclusion of the Supreme Court of
California’s review, the holding of the appellate court47
was affirmed: the Calvert’s were deemed the legal parents of
the baby and the surrogacy contract was enforceable48
.
The Johnson v. Calvert case was a landmark decision in the issue of surrogacy, as it’s holding was the
exact opposite of that in In the Matter of Baby M: the surrogacy contract in question was in fact legally binding and
enforceable.
Though In the Matter of Baby M and Johnson v. Calvert are both influential pieces of litigation, they are
just the two most well known examples of the lack of clear statutory or federal laws regarding the legality and
enforceability of surrogacy contracts. Both cases occurred early on in the history of surrogacy lawsuits and there
have been many since then, all of which have provided very little clarity into the matter. The case of J.F. v. D.B.49
reached the Supreme Court of Ohio in 2007 after being heard at both the trial court and appellate court levels. The
surrogacy contract in question stated will the surrogate mother – in a gestational surrogacy – "’would not attempt to
form a parent-child relationship with any child conceived pursuant to the contract’ and will ‘institute proceedings’ to
‘terminate [her] parental rights’ upon the birth of the children.”50
In a custody battle and breach of contract suit, trial
court held that the surrogacy contract in question was unenforceable and was a violation of Ohio public policy, a
common decision of courts in surrogacy contract cases.51 52
The appellate court reversed the decision,53
claiming the
contract was in fact enforceable and did not violate any policies. Upon review at the Supreme Court of Ohio, the
court reversed54
the judgment of the appellate court, citing that “Enforcing this contract, which is no less than a
contract for the creation of a child, is likely to open Ohio to being an interstate, and perhaps international,
marketplace for gestational surrogacy.”55
Essentially, the contract in J.F. v. D.B. was held to be unenforceable because of the possibility that it could
set precedent for the state of Ohio to become a haven for surrogates. To lawmakers, this should illustrate the clear
need for comprehensive federal laws and regulations about surrogacy. If a state’s court system legitimately fears
parties seeking to enlist a legally bound surrogate to flock to their state, there exists a need for proper regulation.
Rather than leaving states on their own to either outlaw surrogacy contracts and the exchange of money for

7.
7
surrogacy or entirely ignore the issue, Congress needs to approach this growing issue. In the gestational surrogacy
case of J.R., M.R. and W.K.J., Plaintiffs, vs. The State of Utah,56
the issue was not that either the biological parents
or the surrogate had fault with each other, but that the state of Utah refused to recognize the biological and intended
parents as the baby’s legal parents. There is such serious inconsistency in statutory surrogacy law that surrogates are
permitted to keep babies that are not biologically or contractually theirs, and even when there is completely
agreement between all parties, some states refuse to recognize the intended parents as such.
ANALYSIS
AND
SUGGESTION
OF
FEDERAL
POLICY
In many surrogacy-related cases, the issue in question is that the surrogacy contract is unenforceable. The
plaintiff cannot sue for breach of contract because the contract is not actually valid or for kidnapping if a surrogate
refuses to relinquish the baby. Refusing to relinquish a baby that is contractually not the surrogate’s – regardless of
if the baby was conceived via traditional or gestational surrogacy – should be cause for the same punishments as
kidnapping. The child does not belong to the surrogate, because the surrogate waived her rights to claim the child as
her own when entering the surrogacy contract.
A federal recognition of the validity of surrogacy contracts would solve this problem and protect the parties
involved. The intended parent(s), surrogate mother, and donor(s) should all be able to enter in a legally binding
contract that stipulates the terms of the surrogacy agreement. It should include details of who is carrying the baby,
who is donating the egg and sperm, and who exactly the intended parents who will raise the child are. Additionally,
there needs to include exact dates of when the surrogate will relinquish the baby, and whose name will be on the
baby’s birth certificate as the parents. Surrogacy contracts should stipulate how much money will be exchanged for
the surrogacy service, with a clause stating the amount cannot be manipulated after signing, in order to protect the
intended parents from extortion. Ideally, a surrogacy contract should include specific requirements for
communication between the intended parents and the surrogate, such as where the surrogate is residing so that the
surrogate cannot flee with the unborn baby. The Uniform Parentage Act, cited previously and created by the
Uniform Laws Commission, is a near perfect example of legislation regarding surrogacy contracts. If all states were
to enact the U.P.A. – or if Congress enacted it as federal law – there were be far fewer issues of unclear judicial
holdings and surrogacy contracts would be enforceable much more frequently.

8.
8
To answer the previously stated questions: Should the practice of domestic surrogacy be regulated by
federal legislation? Unequivocally yes. The inconsistencies of statutory surrogacy law, judicial holdings, and
enactment of the Uniform Parentage Act have led to broken families and heartache. If this is not feasible in the
future, all states should strive to enact the Uniform Parentage Act. Should surrogacy contracts be legally binding and
enforceable in all states? With the passage of federal surrogacy law or the enactment of the Uniform Parentage Act
in all states, all surrogacy contracts will ideally by legally binding and enforceable. It has been said that one of the
major forces opposing the passage of federal surrogacy laws is the national desire to protect family values. What
better way to protect these values than to recognize that a surrogacy contract is a legitimate and enforceable contract,
disallowing surrogate mothers from stealing a baby away from its rightful parents?
1
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2015.
2
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3
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5
Id.
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6
18 Chap. L. Rev. 553 (2015)
7
Markens,
Susan.
Surrogate
Motherhood
and
the
Politics
of
Reproduction.
Berkeley:
U
of
California,
2007.
Web.
20
Apr.
2015.
8
Id.
Markens
9
Id.
Markens
10
United
States
Congress.
House.
Energy
and
Commerce;
Judiciary.
Surrogacy
Arrangements
Act
of
1987.
By
Thomas
A.
Luken.
100th
Cong.
HR
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United
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20
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2015.
11
Id.
Surrogacy
Arrangements
Act
of
1987
12
Uniform
Laws
Commission
provides
states
with
non-­‐partisan
legislation
that
brings
clarity
and
stability
to
critical
areas
of
state
statutory
law
13
Uniform
Parentage
Act
§ 8:801-809
14
Id.
U.P.A.
15
In the Matter of Baby M. 217 N.J. Super. 313; 525 A.2d 1128; 1987 N.J. Super. LEXIS 1113
16
Id.
Baby
M
(1987)

9.
9
17
Baby
M
(1987),
at
344
18
Baby
M
(1987),
at
344
19
In the Matter of Baby M. 109 N.J. 396; 537 A.2d 1227; 1988 N.J. LEXIS 1; 77 A.L.R.4th 1, at 412
20
Baby
M
(1988),
at
414
21
Baby
M
(1987),
at
347
22
Id.
Baby
M
(1987)
23
Baby
M
(1988),
at
415
24
In the Matter of Baby M. 217 N.J. Super. 313; 525 A.2d 1128; 1987 N.J. Super. LEXIS 1113
25
Baby
M
(1987),
at
408
26
Baby
M
(1987),
at
409
27
In the Matter of Baby M. 109 N.J. 396; 537 A.2d 1227; 1988 N.J. LEXIS 1; 77 A.L.R.4th 1, at 412
28
Baby
M
(1987),
at
408
29
Baby
M
(1988),
at
468
30
N.J. Stat. Ann. § 9:3-54
31
Baby
M
(1988),
at
1
32
Id.
Baby
M
(1988)
33
Baby
M
(1987),
at
408
34
Baby
M
(1988),
at
468
35
Johnson v. Calvert 5 Cal. 4th 84; 851 P.2d 776; 19 Cal. Rptr. 2d 494; 1993 Cal. LEXIS 2474; 93 Cal. Daily Op.
Service 3739; 93 Daily Journal DAR 6409
36
Johnson,
at
101
37
Johnson,
at
87
38
Johnson,
at
88
39
Id.
Johnson
40
Id.
Johnson
41
Id.
Johnson
42
Id.
Johnson

10.
10
43
Id.
Johnson
44
Id.
Johnson
45
Uniform
Parentage
Act,
California
Civ. Code, ß 7000 et seq.
46
Johnson,
at
93
47
Johnson,
at
88
48
Johnson,
at
101
49
J.F.
v.
D.B.
116
Ohio
St.
3d
363;
2007-­‐Ohio-­‐6750;
879
N.E.2d
740;
2007
Ohio
LEXIS
3330
50
J.F.
v.
D.B.,
at
363
51
Id.
J.F.
v.
D.B.
52
In
Re
Baby
et
al.
447
S.W.3d
807;
2014
Tenn.
LEXIS
642
53
J.F.
v.
D.B.,
at
363
54
J.F.
v.
D.B.,
at
368
55
J.F.
v.
D.B.,
at
367
56
J.R., M.R. and W.K.J., Plaintiffs, vs. The State of Utah 261 F. Supp. 2d 1268; 2003 U.S. Dist. LEXIS 7785