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In a minimum of 200 words, write your response to the video “Baby M. and the question of Surrogacy” and address the question of whether contract law should be used to enforce surrogacy agreements by taking a position for or against the practice. In your response, you must cite at least one of the arguments presented by either of the “yes” or “no” arguments below.

Arguments For Using Contract Law to Enforce Surrogacy Agreements

Surrogacy is a practice that is rapidly growing in popularity among Americans. The number of babies born through surrogates each year has more than doubled in the last ten years and continues to grow. Surrogacy agreements are no different than almost any other business transaction—one or two people pay another person a fee to carry out a service for them—so why should a surrogacy agreement not be protected under the same contract laws that most businesses agreements are protected under? It would not only make sense to treat these agreements just like any other voluntary agreement between two parties, but it would also help legitimize, codify, and regulate an industry that brings joy into the lives of couples and helps surrogate mothers earn additional income to provide for themselves and their families.

Enforcing surrogacy under contract law also helps protect the couple paying to receive the child. Recognizing surrogacy agreements as contracts can help prevent unfortunate situations such as the infamous Baby M case of 1988, where a woman agreed to be a surrogate mother for a couple but then refused to relinquish the child after its birth. If surrogacy agreements are treated as contracts, then the surrogate mother will be legally required to give up the baby as stipulated in the agreement or would have to pay significant damages. Treating surrogacy agreements as contracts could also prevent lengthy and expensive trials similar to the Baby M trial.

Not only would enforcing surrogacy agreements as contracts protect the receiving couple, but it would also protect the surrogate mother. There have been cases in the past where a couple has asked a surrogate mother to carry a child for them and, at birth, the baby was discovered to have a serious disability such as Down syndrome. In some of these cases, the receiving couple rejects the baby, leaving the surrogate mother to have to care for the child. This is incredibly unfair to the surrogate mother, as she now has to deal with the significant time- and finance-consuming burdens that come with caring for a child when she didn’t plan on keeping the child in the first place. By covering surrogacy agreements under contract law, both parties are protected and the surrogacy process comes closer to the legitimate reputation that it deserves.

Arguments Against Using Contract Law to Enforce Surrogacy Agreements:

Enforcing surrogacy agreements under contract law would only help to support the often unethical, exploitative business that is surrogacy. While some surrogacy agreements are between a couple and a financially stable surrogate who simply wants to provide for another family, this is not always the case. Often, the women who are most eager to become surrogate mothers are the very poor who will do nearly anything for income, including having a child for the benefit of others. Thus, couples looking for relatively inexpensive surrogacy will often seek out these extremely poor women and ask them to perform a lengthy, body-altering and rarely but potentially fatal service for money. Surrogacy is often an exploitative practice, and codifying the process will likely only serve to legitimize the unfair process.

Second, due to their desperation, surrogates who are poor may be willing to contractually bind themselves to relatively unfair conditions in order to ensure that they get paid. For example, a couple wanting a surrogate could write in a clause that the surrogate must undergo an abortion if the developing fetus is found to have a disability. This would impose another operation on the surrogate that she may be too desperate to turn down.