A comprehensive guide to the laws governing surrogacy arrangements in North Transatlantic (the UK, the USA, and Canada). DOI: 10.13140/RG.2.1.4485.2888

1. SURROGACY CONTRACTSURROGACY CONTRACT
LAWLAW 60066006: CONTRACTS: CONTRACTS
06/03/201506/03/2015
Naira R. MatevosyanNaira R. Matevosyan
MD, PhD, JSMMD, PhD, JSM

2. CONTENTSCONTENTS
Definition – 3
Surrogacy types: Altruistic v. Commercial – 4 -5
Specifics of surrogacy contract – 6 -11
- presumption
- battle of the forms
- 'mirror image' of acceptance
- indefinitness
- consideration sham.
Drawbacks – 12 – 19
- doctrine of unconscionability
- promissory estopell
- “parole of evidence rule”
- fraud and misrepresentation, disarming the contract
- cross-border surrogacy, surrogacy tourism
Transatlantic surrogacy laws – 22 - 23
Notable cases – 24-29
2

3. DEFINITION
Depending on surrogacy types and governing laws, the
surrogacy promise (or set of promises) is either a gift or
a trade. At the theory level, a surrogacy contract is
enforceable if it consists of all basic elements of a legal
contract:
- unambiguous offer
- unambiguous acceptance
- agreement (a mutual intent to bond)
- consideration
- contractual capacity. 3
Surrogacy is an arrangement
whereby a woman agrees to
conceive, gestate, and deliver a child (or children) for
the intended parent(s).

4. SURROGACY TYPESSURROGACY TYPES
There are two types of surrogacy: traditional, and gestational.
In traditional surrogacy, the surrogate woman is the child's
biological mother. She may act as both the egg-donor and
the actual embryo surrogate, and commonly conceives
through intrauterine insemination (IUI).
In gestational surrogacy, the woman is genetically unrelated
to the child. Her ova are not utilized. The conceptus is
created through in vitro fertilization (IVF).
Either surrogacy agreement can be unpaid (altruistic) or paid
(commercial). The arrangement can be legally enforceable
if it meets all mandatory elements of a contract. To disarm
it, the concept of genuineness is exercised (trier of error,
mispresentation, fraud, duress, undue influence, etc).
4

5. ALTRUISTIC v. COMMERCIAL SURROGACYALTRUISTIC v. COMMERCIAL SURROGACY
Both surrogacy types (traditional, gestational) can be
altruistic ( ‘gift relationship’) or commercial (bilateral
motivation by personal gain to enter a legally enforceable
agreement). Practically though, the gestational type is
mostly commercial.
In traditional surrogacy, the genetic linkage between the
surrogate and intended child complicates the contract,
as it implies parental rights to the surrogate mother. The
surrogate may disarm the contract based on several
drawbacks (discussed further).
Gestational surrogacy reduces the risk of a surrogate claim
to the intended child by removing the biological
relationship.
5

6. SPECIFICS OF THE SURROGACY CONTRACT
The following specifics should be considered while enforcing a
surrogacy contract:
I. Governing Laws: Contract law is essentially common law (judge-
made). In the United States however, sales of goods in every state -
except of Louisiana - are governed by a federal statute: Article 2 of
the Uniform Commercial Code (UCC). Commercial surrogacy is a
transaction that ends with a born life (sounds a bit cynical, still it's
the fact and the technical description). In such a commercial context,
an intended child can be seen as a good for sell.
Article 2 of the UCC applies to “ordinary businesses” and provides
implied warranty of merchantability and fitness of the goods in sell. To
be covered by Article 2, the consumer must have purchased the
product from a merchant who usually sells that type of item. If a pet
store owner sells his used car to a third party, that transaction would
not be covered by the UCC Article 2 because selling cars is not the
pet-store's ordinary business. Sensibly, the surrogacy transaction
cannot be governed by the UCC as this statute does not govern the
trade of flesh & blood. Ergo, if the UCC is silent on the issue, the
common law of the state takes the control.[1]
(1) UCC § 1-103 6

7. SPECIFICSSPECIFICS (continued)
II. Presumption: Where the evidence is ambiguous as to the
mutual bound, the court will regard the following rules:
(1) In a “business” context, the court will presume that the
parties intended their agreement to be legally
enforceable [2];
(2) In a social or domestic situation, the presumption will be
that legal relations were not intended. For example, if the
potential surrogate agrees to cease smoking before the
pregnancy but continues consuming tobacco during the
pregnancy, in the absence of evidence otherwise, such an
agreement will be presumed not be intended as legally
binding, since it arises in circumstances related to a
biological relationship.
(2) Emanuel SL (2010). Contracts, 4th
edition. Wolters Kluwer
7

8. III. “Mirror-image” rule: Under the common law, the offeree's
response operates as an acceptance only if it is the precise
mirror image of the offer. If the response conflicts at all with
the terms of the offer or adds/amends new terms, the
purported acceptance is in fact a rejection and counter offer,
not an acceptance.
Pregnancy is a dynamics, where each day adds new needs of the
growing fetus. Under such hormonal shifts and turbulence, a
pregnant woman's state of mind and physical needs change on
daily basis. Hence, in pregnancy context, the mirror-image
acceptance is scarcely feasible or enforceable. In Canada and 26
United States, advance directives are not applicable to the
pregnancy. If the potential surrogate is offered money in
exchange for (among other obligations) abstaining from coffee
during the pregnancy, and if she 'can't guarantee what needs she
may have a month later,' her diverging response disintegrates the
acceptance – making the contract invalid.
SPECIFICSSPECIFICS (continued)
8

9. IV. Battle of the Forms: The UCC rejects the “mirror image” rule
and often leads to a contract being formed even though the
acceptance diverges from the offer. This entire “battle of
forms” is dealt within UCC §2-207, probably the most
important UCC provision, which suggests that “acceptance is
expressly conditional.” However, as noted above, the UCC only
applies to “ordinary businesses” or transactions where the
merchantibility and fitness of the good in trade is measurable.
V. Duration of the Power of Acceptance: The offeree's power
of acceptance may be terminated in five ways: (1) rejection, (2)
counter-offer, (3) lapse of time, (4) revocation by the offeror,
and (5) death or incapacity of either side. Due to the changing
needs of the pregnant woman, her attachment to the fetus,
the surrogate may submit her counter-offers, change the
reasonable timelines - risking the power of acceptance and
validity of the contract.
9
SPECIFICSSPECIFICS (continued)

10. VI. Indefiniteness: No contract is valid if the terms of parties are
unduly indefinite. For example, if the intended parents do not
specify in the contract their acceptance of either gender or
number of children, the integrity and power of the contract is
at risk.
VII: Good Faith & Consistency: In both UCC and non-UCC
contracts, an important type of term the court will supply is an
obligation of good faith and fair dealing. [3] A central aspect of
this duty is that a party is required to behave in a way that is
consistent with the other party's reasonable expectations about
how the contract will work. Such a consistency will hardly be
maintained by a pregnant woman (see details in the slides 8, 11,
14-16).
(3) UCC § 1-304 10
SPECIFICSSPECIFICS (continued)

11. VIII. Meeting of the minds: 'Offer was not well understood' is a
common defense of the surrogate mothers. If the parties have a
miscomprehension of what they are agreeing to, this may
prevent them from having the required “meeting of the minds,”
therefore, will prevent a contract from existing.
IX. Consideration sham: Commonly, promise is supported by
consideration if:
(a) the promisee gives up something of value, or circumscribes
her liberty in some way (suffers a “legal detriment”);
(b) the promise is given as part of a “bargain,” when the
promisor makes her promise in exchange for the promisee's
detriment (exchange).
Even though the surrogacy deal looks on its face supported by
consideration, when it comes to sharing a child, the court
may conclude that the purported consideration was sham,
because: (1) it was “inadequate” - as the consideration was
big enough to suggest that there was a bargain; or (2) the
amount paid for consideration was too small (nominal). 11
SPECIFICSSPECIFICS (continued)

12. DRAWBACKSDRAWBACKS
- Ill Purpose: A contract is formed by an illegal/amoral purpose. It
contradicts to the public policy [4] (see J.F. v. D.B, 941 A.2d 718,
Pa.Super. Court, 2008). The amoral or illicit intent, however, must be
established by the jury, not by the bench.
- Inadequate Consideration: For example, sex in exchange of a sum
is an inadequate consideration because sex is not valued by the law.
- Doctrine of Unconscionability (slide 13)
- Promissory Estoppel (slides 14, 15)
- “Parole Evidence” Rule (slide 16)
- Judiciary Role and Prejudice (slide 17)
- Fraud & Misrepresentation (slides 18-20)
- Cross-Border Surrogacy or Surrogacy Tourism (slide 21)
12
As all other contracts, the surrogacy deal could
be void based on the following weaknesses:

13. DOCTRINE OF UNCONSCIONABILITYDOCTRINE OF UNCONSCIONABILITY
Agreement is unenforceable if the terms are so unjust that no
reasonable person would agree to them. Applied when:
- there is a disparity in bargaining power;
- weaker party is given take-it-or-leave-out deal with
manifestly unfair terms. [5]
Note: Legal unconscionability is not the same as moral
unconscionability. Bad deal is not necessarily unconscionable.
Legal unconscionability addresses one-sided, oppressive and
unfairly surprising contracts.
Unconscionability doctrine is divided into two sectors:
Procedural: Whether the party challenging contract had
meaningful choice? Was there disparity in bargaining power? Were
there high-pressure sales tactics?
Substantive: This is where the terms of bargain themselves
disclose that transaction may be suspect.
(5) Williams v. Walker-Thomas Furniture Company, 350 F. 2d 445 - Court of
Appeals, DC Circuit (1965) 13

14. PROMISSORY ESTOPPELPROMISSORY ESTOPPEL
Promises which foreseeably induce reliance on the part of the
promisee will often be enforceable without consideration
under the doctrine of promissory estoppel. [6, 7]
Example: A woman in a same-sex partnership (or marriage) signs an
altruistic surrogacy contract with an intended heterosexual family
without informing her female partner about the deal. During her
pregnancy, her female partner sues the intended parents claiming a
remedy for her time in support of her pregnant partner to successfully
carry the pregnancy.
In some states “parenthood by contract” is not recognized by the state
law [6]. Further, the female partner of the surrogate woman would
be able to recover at least some value of her expenses, even though
the surrogate's promise was a gift and therefore, it was not
supported by consideration.
(6) Restatement 2nd
of Contracts, § 90
(7) TF v. BL, 442 Mass. 522 - Mass: Supreme Court, Hampshire 2004
14

15. There are two types of reliance.
Actual: The promisee must actually rely on the promise.
(in the former example, p. 14, the female partner of the
surrogate had to establish with a preponderance of
evidence that she left her job or lessened addressing her
own needs, because she was taking care of her pregnant
partner).
Foreseeable: The promisee's reliance must also be
reasonably foreseeable to the promisor.
The promissory estoppel doctrine is mostly applied to
enforce promises to make gifts, where the promisee
relies on the gift to her/his detriment. In intra-family
promises, however, the court commonly awards just
the factual damages, like spending on pregnancy, but
not the assumed lost wage. 15
PROMISSORY ESTOPPELPROMISSORY ESTOPPEL (continued)

16. PAROLE EVIDENCE RULEPAROLE EVIDENCE RULE
This rule limits the extent to which a party may establish that
discussions or writing prior to the signed written contract should be
taken as part of the agreement. Inter alia, this rule bars the fact-
finder from considering any evidence of certain preliminary
agreements that are not contained in the final writing, even though
this evidence might show that the preliminary agreement did in fact
take place and that the parties intended it to remain part of their
deal despite its absence from the writing.
The “parol of evidence rule” consists of the two sub-rules:
Partial integration: no evidence of prior or contemporaneous
agreements or negotiations (verbal, written) may be admitted if this
evidence would contradict a term of the writing.
Total integration: no evidence of prior or contemporaneous
agreements or negotiations may be admitted which would either
contradict or add to the writing.
In summary, the parole of evidence rule provides that evidence of a
prior agreement may not supplement an integration. 16

17. JUDICIARY ROLE & PREJUDICEJUDICIARY ROLE & PREJUDICE
The jury finds and the judge rules.
Most contract-courts however, hold that the judge (not the jury)
decides: (1) whether the writing was intended as an integration;
(2) if so, whether the integration is “partial” or “total,” and (3)
whether particular evidence would supplement the terms of a
complete integration.
Conflicting views of judiciary prejudice have two ends:
(I) The “four corners” rule - the judge decides whether there is
an integration (total, partial) by looking solely at the
document;
(II) The “Corbin” view- the ruling is based on all available
evidence - including testimony - to determine the actual
intention of the parties.
Merger clause: this exists in most contracts. The writing constitutes
the sole agreement between the parties. Based on this clause, the
court finds the writing to be intended as a total integration (in which
inconsistent prior oral or written terms may be shown). 17

18. FRAUD & MISREPRESENTATIONFRAUD & MISREPRESENTATION
Even if a writing is a total integration, a party may always
introduce evidence of earlier oral agreements suggesting
illegality, fraud, duress, lack of consideration, or any other fact
that would make the contract void or/and voidable. [2]
Note:
A collateral oral agreement supported by separate consideration
can be demonstrated to dispute a fraud. For example, the
intended parents have verbally promised the surrogate “ to rent
for her a convenient apartment in a great location for a 12- month
term.” Because such an alleged oral agreement is supported by
separate consideration, the surrogate can prove that the oral
agreement occurred even though there is an integrated writing
that does not include that agreement.
18

19. There are five categories of contracts which, in almost every
state, fall within the Statute of Frauds:
(1) Suretyship; (2) Marriage; (3) Land contract; (4) One year; (5)
UCC (sell of goods for $500 or more).
Contract for bearing of a child has no category in the face of
common-law, however, in surrogacy arrangements the fraud
may constitute:
- identity fraud (misrepresentation of the legal name)
- age misrepresentation (a minor or a mature minor under age 18
years may present herself as an adult)
- residency fraud (exercised in surrogacy tourism).
FRAUD & MISREPRESENTATIONFRAUD & MISREPRESENTATION (continued)
19

20. To invalidate a contract (including the surrogacy contract), the
concept of genuineness is exercised to find mistake, fraud,
misrepresentation, duress, or undue influence.
For disarming the contract, the surrogate may claim her
”incapacity" or mistake for: being a minor (< 18years),
presence of severe mental or cognitive impairment at the time
of signing the contract [8], being under the influence of drugs or
alcohol at the time of signing the contract, or duress (financial
hardship, blackmail, interrogation). [9]
Lapse in judgment must be supported by the expert witnesses
licensed in the same state, and the mistake or duress are solely
for the jury to decide. [10]
(8) Hernandez v. Banks, 65 A.3d 59 (D.C. App. 2013)
(9) Field MA (2009). Surrogate Motherhood. Harvard University Press
(10) Orlov S, Orlov D (2007). Commercial Surrogacy: Commodification or
Choice? The University of Toronto Medical Journal; 84(3):177–179 20
DISARMING THE CONTRACTDISARMING THE CONTRACT

21. CROSS-BORDER SURROGACY &CROSS-BORDER SURROGACY &
SURROGACY TOURISMSURROGACY TOURISM
In Europe: Legal diversity provokes a “procreative tourism.” Visiting
from a country with a rather strict approach, the baby-hunters
commission women in a more liberal country to carry a child for
them. After the birth they try to take the child to their home
country, thereby obviating the surrogacy ban that prevents them
from entrusting a surrogate mother at home. European courts and
legal scholars struggle with a coherent approach on how to treat
those citizens who went abroad to have a child. The Hague
International Forum on Inter-country Adoption & Global Surrogacy
(Aug. 2014) brought together women’s health scholars and legal
experts from around the world to understand and combat the
cross-border surrogacy.[10]
In the United States: The MacArthur Foundation's generous grant
($200,000.00) to the Center for Genetics and Society (CGS) is for
addressing the information gap surrounding surrogacy, with
emphasis on human rights and social justice.
(10) Fries M (2013). Cross-Border Surrogacy: Time for a Convention?
University of Munich, Center of International Law
21

22. TRANSATLANTIC SURROGACY LAWSTRANSATLANTIC SURROGACY LAWS
Pursuant to Canadian and British laws, couples consuming surrogacy must
consider the possibility of an attachment between the surrogate mother and
baby; the arrangement must be exclusively altruistic (no money must be paid),
and application for a parental order should be made when the baby is between
6 weeks and 6 months old.
Great Britain: Under the Section 2 of the Surrogacy Arrangements Act of 1985
(amended by the HFE Act 2008), commercial surrogacy is unlawful. Under the
Section 3, advertising by or on behalf of a potential surrogate mother or a
person looking for a surrogate mother is an offense. Section 27 defines that the
woman, who has the embryo placed in her uterus (gestational surrogacy) is the
mother of the child. Under amended Section 28, if the surrogate is married,
then her husband is the father unless he did not consent. If he did not consent
then, no-one is recognized as the father.
Following the birth of a child, an application for parental order can be made by a
couple where the gametes of at least one of the applicants was used to bring
about the creation of the embryo. Section 54 provides that the application must
be made within 6 months of the birth of the child and the child must be living
with the applicants. Whilst it is illegal in the U.K. to pay more than expenses for
a surrogacy, the relationship is recognized under Section 30 of the Human
Fertilisation and Embryology Act 1990. 22

23. Canada: The Assisted Human Reproduction Act (AHRC) of 2004, fully in force
since 2007, permits only altruistic surrogacy: surrogate mothers may be
reimbursed for approved expenses but payment of any other consideration
or fee is illegal. Quebec, however, prohibits all surrogacy types.
The United States: The Constitutional Law consists of the principle of
neutrality, based on which the government must be impartial. Seven states
and DC prohibit, penalize, or void surrogacy contracts: AZ (A.R.S. § 25-
218 ), DC (D.C. Code §§ 16-401 to -402 ), MI (MCLS prec §§ 722.851-.863), NY
(NY CLS Dom Rel §§ 121 to 124), IN (Burns Ind. Code Ann. §§ 31-9-2-126 to
-127), LA (La. R.S. 9:2713), KY (KRS § 199.590). Of these, KY and LA find the
traditional surrogacy contract void, but do not address the gestational
surrogacy. NE (Cent. Code §§ 14-18-01 to -08) and WA (Rev. Code Wash. §§
26.26.011 to 903) recognize gestational surrogacy agreements, but prohibit
contracts for compensation. AK (A.C.A. § 9-10- 201 to -202), FL (Fla. Stat. §§
63.212 to .213), IL (750 ILCS 45/6), NV (Nev. Rev. Stat. Ann. § 126.045), NH
(RSA §§ 168-B:1 to -B:32), TX (Tex. Fam. Code §§ 160.751 to 763), UT (Utah
Code Ann. §§ 78-45g-801 to -809), and VA (Va. Code Ann. §§ 20-156 to -165)
allow but regulate traditional and gestational surrogacy separately. Six of
those states limit compensation for surrogacy arrangements and require
mental and physical pre-screening. Four require court approval. Three states
allow the surrogate time to change decisions or to challenge the contract.
23

24. NOTABLE CASESNOTABLE CASES
Matter of Baby M. 537 A. 2d 1227 - NJ: Supreme Court 1988
PRINCIPLE FACTS: A married couple entered into a surrogacy agreement
with another married woman, where the surrogate agreed to bear a
child through artificial insemination by the sperm of intended father in
exchange for costs plus $10,000 and to terminate her rights as mother
(before the baby was even conceived). Upon the birth of baby-M and
subsequent handover to the intended parents as agreed, the surrogate
"became deeply disturbed, disconsolate, stricken with unbearable sadness."
She persuaded the intended parents to give her one last week with the
child by telling them that she was suicidal and fled to Florida with her
husband.
PROCEDUREAL HISTORY: The intended parents filed a suit, seeking
possession and ultimate custody of the child and enforcement of the
surrogacy contract. The trial court ordered that the surrogate mother's
parental rights be terminated and that the sole custody of the child be
granted to the intended parents. The trial court also entered an order
allowing the adoption of baby-M by the adoptive mother - all in
accordance with the surrogacy contract. The surrogate mother
appealed.
24

25. ISSUE: Whether the surrogacy contract was enforceable and
termination of the parental rights of the surrogate mother was
justified.
JURISPRUDENCE: Constitutional rights of bodily integrity; also the
Parentage Act. N.J.S.A. 9:17-43a(1), -44a; and P.L.1977, 367
(C.9:3-37 et seq.)
HOLDING: The surrogacy contract is invalid as it is in conflict with
the law and the people of the state. Pre-birth contract under
which a woman agrees to be impregnated (through artificial
insemination) by a man not her husband, and to irrevocably give
up all parental rights upon the birth of the resulting child for the
purpose of permitting the natural father and his wife to adopt the
child as their own, where the woman is to be paid $10,000 and
where there is no showing that the woman is an unfit mother or
that the natural father and his wife are fit parents, is void as
counter to laws governing adoption and termination of parental
rights and the public policies of keeping children with both of
their natural parents and of treating the rights of natural parents
equally concerning the custody of children. 25

26. DISPOSITION: Remanded for determination of the surrogate mother's
unsupervised, uninterrupted, liberal visitation rights.
REASONING: The use of money for the purpose of adoption through private
placement is illegal and perhaps criminal. A contract under which the
mother, before the baby is born, agrees to surrender all parental rights to
the child is coercive. In a case such as this, the best interests of the child
become secondary to the market concerns of facilitating an adoption: the
child is "sold" without regard for whether the purchasers will be suitable
parents; the natural mother does not receive the benefit of counseling
and guidance; and the monetary incentive to sell may, in some
circumstances, make her decision less voluntary.
The adoptive parents may not be fully informed of the surrogate's medical
history. Statutes provide that a surrender of parental rights can only occur
where there has been a voluntary surrender of a child to an approved
agency or to the state - accompanied by a formal document
acknowledging termination of parental rights or where there has been a
showing of parental abandonment or unfitness. Under this contract, the
rights of the mother are irrevocably termination before she knows the
strength of her bond with the child. Therefore, she cannot give informed
consent.
26

27. RR v. MH, 426 Mass. 501 - Mass: Supreme Judicial Court 1998
FACTS: In April 1996, an infertile married couple responded to a newspaper's
ad for surrogacy services, and consulted with the New England Surrogate
Parenting Advisors (NESPA). Entered into a contract with NESPA in 1996,
the couple paid a fee of $6,000. In Spring 1996, the surrogate (married
mother of two children) responded to a NESPA advertisement. She was
advised to seek an attorney's advice. The potential surrogate was also seen
by a clinical psychologist as part of NESPA's policy. The psychologist
concluded that she was solid, thoughtful, and well grounded. Her husband
too, told the psychologist by phone that he supported his wife's decision.
Signed at the Notary Public in November 1996, the agreement stated that
the "Surrogate shall be inseminated with the semen of Natural Father" and
"that, on the birth of the child or children so conceived, Natural Father will
have the full legal parental rights of a father, and surrogate will permit
Natural Father to take the child or children home from the hospital to live
with his wife." The agreement acknowledged that the mother's parental
rights would not be terminated if she permitted the father to take the child
home and have custody, that the mother could at any time seek to enforce
her parental rights by court order, but if she attempted to obtain custody
or visitation rights, she would forfeit her rights under the agreement and
would be obligated to reimburse the father for all fees and expenses paid
to her under it. Surrogacy compensation was $10,000.00. The agreement
was set for the interpretation governed by the Rhode Island law. 27

28. During the pregnancy, the surrogate accepted three checks sent by the
attorney of the intended parents. In the third trimester she changed her
mind, decided to keep the child, and returned the last check with the non-
cashed amount of $3,500. She was determined to refund the remaining
paid amounts. A baby girl was born in Massachusetts.
PROCEDURAL HISTORY: Once the surrogate changed her mind, prior the
birth of the child the father brought a lawsuit against the pregnant
surrogate alleging breach of contract, seeking to establish his paternity,
and requesting a declaration of his rights under the surrogacy agreement.
The surrogate's husband was added as a defendant. The judge appointed a
guardian ad litem to represent the interests of the unborn child.
Proceedings were held on aspects of the preliminary injunction request
(resolved) and on the mother's motion to determine whether surrogacy
contracts were enforceable in Massachusetts. The Probate Court entered
an order directing the surrogate to give the child to the father when it was
discharged from the hospital, and granted the father temporary physical
custody of the child. The surrogate was granted the right to frequent visits.
The surrogate appealed. While appellate proceedings were ongoing, the
probate judge reported to the Supreme Court that the propriety of her
order was based in part on the conclusion that the surrogacy contract was
enforceable, and that specific questions were not reportable under Mass.
R. Dom. Rel. P. 64 (1997). 28

29. ISSUES : To determine: (1) Preliminary injunction; (2) Whether surrogacy
contracts are enforceable in Massachusetts; (3) Whether the father's
custody claim was likely to prevail on the merits of the contract claim
and if not, on the basis of the best interests of the child.
JURISDICTION: R.I. Law; M. G. L. c. 46, §4B, also Mass. R. Dom. Rel. P. 64
(1997)
HOLDING: The surrogate mother's purported consent to custody in the
agreement was found ineffective because no such consent should be
recognized unless given on or after the 4th day following the childbirth.
The payment of money to influence the surrogate mother's custody
decision made the agreement as to custody void.
DISPOSITION: The surrogacy contract is void.
REASONING: Eliminating any financial reward to a surrogate mother is
the only way to assure that no economic pressure will cause a woman,
who may well be a member of an economically vulnerable class, to act
as a surrogate. It is true that a surrogate enters into the agreement
before she becomes pregnant. However, commercial surrogacy
arrangements raise the concern that, under financial pressure, a
woman will permit her body to be used and her child to be given away.
29