December 18, 2007
Neither Illinois/Minnesotta Law Prohibits GSA Contract
In an unpublished opinion, the Minnesota Court of Appeals held that the parties' gestational-surrogacy agreement would be upheld and enforced the choice-of-law provision (interpreting the contract under Illinois law). See In re Paternity & Custody of Baby Boy A., 2007 WL 4304448 (Minn. Ct. App. Dec. 11, 2007). Even though the court upheld the choice of law provision and applied Illinois law, the court went on to state that the GSA did not violate Minnesota public policy. Id. at *6-7. Interestingly, the neither one of the parties lived in Illinois and the contract was not executed there. However, the performance of the contract (or the artificial insemination of the surrogate) took place in Illinois. And, because the parties entered into the contract in good faith "without the intent to evade the law" (as Minnesota law does not clearly forbid GSAs), the court enforced the choice of law provision. Id. at *3. Illinois law, however, provides a clear statutory method for interpreting GSAs (however, because the parties entered into this particular GSA before the effective date of the statute, it was not binding on the parties in this case). Id. at *3, 7.
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