Enforcing Intentional Motherhood: The Harrowing Consequences Arising from the Inconsistency of Statutes Regarding Surrogacy, and How the Enforcement of Surrogacy Contracts is the Answer

Global Business Law Review Volume 12 Issue 2 Note 6-26-2024 Enforcing Intentional Motherhood: The Harrowing Consequences Arising from the Inconsistency of Statutes Regarding Surrogacy, and How the Enforcement of Surrogacy Contracts is the Answer Meena Hatab Cleveland State University College of Law, Follow this and additional works at: https://engagedscholarship.csuohio.edu/gblr Part of the Comparative and Foreign Law Commons, Contracts Commons, Family Law Commons, and the Health Law and Policy Commons How does access to this work benefit you? Let us know! Recommended Citation Meena Hatab, Enforcing Intentional Motherhood: The Harrowing Consequences Arising from the Inconsistency of Statutes Regarding Surrogacy, and How the Enforcement of Surrogacy Contracts is the Answer, 12 Global Bus. L. Rev. 60 (2024) available at https://engagedscholarship.csuohio.edu/gblr/vol12/iss2/5 This Note is brought to you for free and open access by the Global Business Law Review Home at EngagedScholarship@CSU. It has been accepted for inclusion in Global Business Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact . Vol. 12 (2024) ENFORCING INTENTIONAL MOTHERHOOD: THE HARROWING CONSEQUENCES ARISING FROM THE INCONSISTENCY OF STATUTES REGARDING SURROGACY, AND HOW THE ENFORCEMENT OF SURROGACY CONTRACTS IS THE ANSWER MEENA HATAB* * J.D. received May 2023, Cleveland State University, Cleveland State University College of Law. I. INTRODUCTION Since the conception of surrogacy thousands of years ago, society continues to hotly debate the justification and purpose of the arrangement. An ancient concept, the Book of Genesis first mentioned surrogacy in the story of Sarah and Abraham, dated 2000 years before the birth of Christ.1 Sarah and Abraham were married but unable to conceive a child of their own, so Sarah requested that her servant Hagar conceive and carry Abraham’s child, Ishmael, whom Sarah saw as her own.2 This is a case of traditional surrogacy, where the surrogate uses her own egg in the child she is carrying for the intended parents.3 However, with the development of medical technologies and the legal and emotional complexities of traditional surrogacy, gestational surrogacy agencies have become generally more common.4 The ethical, moral, and legal implications of surrogacy have been at the forefront of debates in feminist, theological, and legal scholarly writing—with each of these views contributing in some way or another to the policies that address and regulate surrogacy and other assisted reproductive technologies (ARTs). Most notably, Canada is one of few developed nations that outlaw commercial surrogacy in the country.5 Where commercial surrogacy is banned on a Federal level in Canada, the United States leaves regulations of commercial surrogacy at the discretion of each state.6 This Note will discuss how the practice of commercial surrogacy is treated across the United States. Most notably, how the courts treat surrogacy contracts from state to state. A 1 Genesis 15:1-5; Genesis 16: 1-11, 13-16, Genesis 17: 1- 5, 15-16; Genesis 21: 1-3, 6, 8-19 (New Revised Standard Version). 2 Id. 3 American Surrogacy, Traditional vs. Gestational Surrogacy, AMERICAN SURROGACY, https://www.americansurrogacy.com/surrogacy/traditional-vs-gestational-surrogacy (last visited Sep. 23, 2022). 4 Surrogate.Com, Traditional vs. Gestational Surrogacy – What's Best For My Family?, SURROGATE.COM, https://surrogate.com/about-surrogacy/types-of-surrogacy/traditional-vs-gestational-surrogacy-whats-best-for-myfamily/ (last visited Sep. 23, 2022). 5 Assisted Human Reproduction Act, S.C. 2004, c. 2 (Can.). 6 American Surrogacy, U.S. Surrogacy Laws - Where is Surrogacy Legal?, AMERICAN SURROGACY, https://www.americansurrogacy.com/surrogacy/surrogacy-laws-in-the-united-states (last visited Sep. 23, 2022). 60 summary of how Canada views the practice of surrogacy will provide a general view into how the view of the practice is different across borders. It will be discovered that, while there is a federal law governing surrogacy in Canada, there is no federal law in either country that enforce surrogacy contracts or treat surrogacy contracts as valid contract between two adult parties. This is due to the preconceived notions of what constitutes a “mother” or a “parent” by statutes that are often as outdated as they are disregarding the will of two parties entering a mutual agreement in writing. It will be argued, throw a show of evidence, that federal enforcement of surrogacy contracts will ensure that these contracts are subject to legal scrutiny and care. As well, it will be shown that surrogacy contracts are not against public policy and are, in fact, economically beneficial. I will use British Columbia’s Family Law Act as an example of how surrogacy contracts should be involved in the surrogacy process. The Note will conclude that an intent approach should be used when analyzing the rightful parents of a baby born via surrogacy and that surrogacy contracts should be enforced to protect both parties during the surrogacy process. II. SURROGACY The practice of surrogacy is diverse and continuously evolving along with continuing strides in technology. There are two main methods of surrogacy: traditional and gestational. Traditional surrogacy, for example, is when the surrogate is the biological mother of the baby she carries.7 This practice is becoming increasingly rare due to the increased legal and emotional risks that come with it, making gestational surrogacy the preferred method for parents.8 In gestational surrogacy, the gestational surrogate is not biologically related to the baby she carries.9 In this 7 American Surrogacy, What is Traditional Surrogacy, and How Does It Work?, AMERICAN SURROGACY, https://www.americansurrogacy.com/surrogacy/traditional-surrogacy (last visited Oct. 1, 2022). 8 Id. 9 Id. 61 note, the focus of the discussion will be surrounding gestational surrogacy as it is the more accepted form of surrogacy in modern practice. In every surrogacy arrangement, there are legal actions that are required to officially establish the intended parents as the baby’s legal parents. Under the Uniform Parentage Act, a woman who gives birth to a child is presumed to be the biological and legal mother of that child; if she is married, her husband is presumed to be the child’s legal father.10 However, this does not ring true for a carrier and the child undergoing gestational surrogacy. Because of the Uniform Parentage Act, an acknowledgment of parentage by the court to establish the intended parents as the child’s true legal parents is required. This acknowledgment is most commonly done in the form of a pre-birth order, which assigns the legal rights to the intended parents and allows them to keep the baby.11 Even though those legal rights are established only after the child’s birth, they do provide intended parents with the lega (...truncated)