Wednesday, July 17, 2013
Twenty-five years after the Baby M case, some states (including one shaped liked a mitten), still have not passed legislation addressing the legality of surrogacy contracts. So it is that the Wisconsin Supreme Court just last week upheld a surrogacy contract much like the one at issue in Baby M in a case called In re Paternity of F.T.R.: Rosecky v. Schissel.
The contract at issue was called a parentage agreement (PA). The PA provided that the Rosecky's would become the parents of the child that resulted from Monica Schissel's pregnancy. The child was the product of Ms. Schissel's egg and Mr. Rosecky's sperm. The Court concluded that the PA was enforceable except for two things. Termination of Ms. Schissel's parental rights could not occur automatically by contract, and the contract would not be enforceable if such enforcement was deemed not to be in the best interests of the child. The Court reversed the lower court's decision, which set aside the PA, and remanded for proceedings in which the terms of the PA are to be enforced unless at odds with the best interests of the child.
Chief Justice Abrahamson, joined by Justice Bradley, filed a lengthy concurrance in which she made two points: First, while she would not hold surrogacy agreements to be per se invalid, Chief Justice Abrahamson stresseed the need for courts to scrutinize them closely, given that they are contracts for the use of human bodies for altruistic or commercial purposes, which also are designed to create a child and to establish custody of that child. Second, Chief Justice Abrahamson criticized the majority opinion for treating the case as a contract dispute when actually the posture of the case made such an analysis inappropriate. The case began as a petition for recognition of paternity rights, custody and placement brought by Mr. Rosecky. As a result, according to the Chief Justice policy considerations relevant to family law should prevail. She agreed with the main opinion that the lower court erred in setting aside the PA, but she was equally critical of the main opinion, which in her view did not give adequate wait to statutory provisions relevant to a determination of the best interests of the child.
It just happens that a new article on this subject by Yehezkel Margalit has just gone up. It is called In Defense of Surrogacy Agreements: A Modern Contract Law Perspective. Here is the abstract from SSRN.
The American public’s attention was first exposed to the practice of surrogacy in 1988 with the drama and verdict of the Baby M case. Over the last twenty-five years the practice of surrogacy has slowly but surely become increasingly socially accepted and even welcomed. This evolution serves to emphasize the bizarre judicial and legislative silence regarding surrogacy that exists today in the vast majority of U.S. jurisdictions. In this article I describe and trace the dramatic revolution that took place during the recent decades as the surrogacy practice has totally changed from one viewed as problematic and rejected to a socially widespread and accepted practice. As set forth below, this recent shift demands increasing legal recognition of the legality of surrogacy contracts and moderate regulation of their enforcement. In doing so, this article explores the various intrinsic contractual problems of surrogacy contracts - the problem of unequal power of the contracting parties, the problem of change of heart and the problem of changed circumstances. As presented the preliminary normative claim regarding those contractual problems was not properly addressed by classical contract law, however, with the development of modern contract law we are now supplied with a well-equipped framework and doctrines appropriate for dealing with such problems. In order to demonstrate my innovation I will represent one main solution that the modern contract law gives us for each given contractual problem. The article then concludes with an appeal to the legislature and judiciary for a legal framework and a suggested outline of the practical administrative-legal mechanisms for accomplishing the complete legal and social recognition of surrogacy contracts.