William & Mary Journal of Race, Gender, and Social Justice
Abstract
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 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 drastically changed from one viewed as problematic and rejected to a socially widespread and accepted practice. As set forth below, this recent shift demands increasing the legal recognition of the legality of surrogacy contracts and the 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 a change of heart, and the problem of changed circumstances. As presented, the preliminary normative claim regarding these 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 concludes with an appeal to legislatures and courts 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.