Be Fruitful and Multiply, By Any Means Necessary: The Time Has Come to Recognize and Enforce Gestational Surrogacy Agreements

Paul G. Arshagouni, Michigan State University College of Law

Abstract

The practice of surrogacy, when one woman carries a child to term on behalf of someone else, has been with us for millennia, with early references found in Greek mythology and the Bible. With the advent of in vitro fertilization just over years 30 ago, surrogacy became option for couples and individuals who could not carry a child to term but did not want to pursue adoption. In the early days of modern surrogacy, states had little or no statutes or case law giving guidance as to the enforceability of surrogacy agreements. That changed with the seminal cases of Baby M from New Jersey in 1988 and Johnson v. Calvert from New Jersey in 1993. However, those cases came to different conclusions. Over the next twenty years states have taken widely disparate approaches to surrogacy agreements. Some states fully enforce them; others enforce some agreements, but not others; some states refuse to enforce any agreements; and some states impose criminal penalties for engaging in a surrogacy agreement. This has led to a confused patchwork of laws and has added substantially to the legal uncertainty. We now have twenty years of experience with surrogacy. None of the parade of horribles raised in opposition to surrogacy has been borne out. This article argues for the adoption of a national standard that recognizes and reasonably regulates gestational surrogacy agreements.