Home > Journals > LAWREVIEW > Vol. 87 > No. 4 (2013)
This Article is not meant to debate whether surrogacy contracts should be legal. The purpose of this Article is to address situations where the surrogate reneges on her promise and attempts to keep the child. In particular, this Article deals with the adjudication of maternity after the surrogate has breached the agreement by failing to turn the child over to the intended parent or parents. This Article is divided into four parts. Part I discusses the current ways courts resolve breaches of surrogacy contracts. Part II evaluates the appropriateness of legal remedies like damages and specific performance when a surrogate breaches the contract. Part III explores the manner in which the equitable remedies of promissory estoppel and unjust enrichment can be utilized to compensate the intended mother after the contract breach. Finally, in Part IV, this Article puts forth a proposal for resolving breaches of surrogacy agreements. This Article contends that contractual surrogacy obligations should be treated like any other contractual obligations. Consequently, courts should take actions to ensure that the intended mother receives the benefit of her bargain by being recognized as the child's legal mother. The appropriate way to accomplish that is to establish a rebuttable presumption that surrogacy contracts should be specifically enforced.