A surrogacy arrangement is usually created when a couple, who cannot have a baby for whatever reason, contracts with a woman to carry their fertilized embryo. The rise and success of in vitro fertilization, and the increase in sperm, egg, and embryo donation have called into question the enforceability of surrogacy contracts.
Whether a surrogacy contract is enforceable depends on the resolution of a number of issues. First, courts must decide whether such a contract is void as against public policy or voidable by the birth mother. If the contract is enforceable, then the proper remedy for the breach of the agreement must be determined. Some courts may order the mother to hand over the child, whereas other courts will only allow monetary damages.
Each state has its own legal approach to surrogacy and surrogacy contracts. Some states make surrogacy contracts enforceable, while others forbid or even criminalize it. For example:
- Delaware, the District of Columbia, Indiana, Michigan, New Jersey, and New York courts have refused to enforce surrogacy contracts.
- In Kentucky, the birth mother has the right to void the contract if she changes her mind during the pregnancy or immediately after the birth. Some surrogacy contracts are voidable if they do not conform to state adoption statutes.
- California has held that surrogate mother contracts are specifically enforceable, at least where both the egg and sperm are donated by individuals other than the surrogate who bears the child.
If you are a couple seeking to enter into a surrogacy agreement or if you are a woman contemplating becoming a surrogate, it may be helpful to contact an experienced contract lawyer. An attorney can help you understand how your state’s laws affect your surrogacy contract.