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Legal Issues: New Reproductive Techniques. November 29, 2001. Problem 12-5. Surrogacy (AI). First Step: Classify Type of Agrmt. Second Step:. Identify Parties. Genetic Mother/Surrogate:. Mary. Genetic Father:. Jack. Intended Adoptive Mother:. Jill (Jack’s wife).

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problem 12 5
Problem 12-5

Surrogacy (AI)

First Step: Classify Type of Agrmt.

Second Step:

Identify Parties

Genetic Mother/Surrogate:


Genetic Father:


Intended Adoptive Mother:

Jill (Jack’s wife)

i surrogate wants to be released from k
  • Will court enforce agreement?

State Regulation of Surrogacy (About Half the States Have Some Regulation)

Ban & Criminalize/ Declare K void- Permit but

Civil Penalties No enforcement Regulate

(Minority) Through courts (Growing # -

(Majority range of of statutes) regulations)

MD – Among approx. 50% of states w/out surrogacy legislation

Statutory Grounds for Refusal to Enforce?
  • Pre-Birth Consent Invalid / No bases for TPR
  • Fee May Violate Anti-Baby Selling Statute in Most Adoption Laws

Public Policy Grounds for Refusal to Enforce?

  • Best Interests of Child Should Govern Child Placement Decision
  • Exploitation of Women, Particularly Low Income
  • Policies underlying anti-baby selling statutes (adoption & criminal law
Gestational Surrogacy

Genetic Mother: Jill (or Donor Egg)

Genetic Father: Jack

Surrogate: Mary

Alternative Type of (More Common) Surrogacy Agmt:

Implications for Statutory or Public Policy Objections to Surrogacy?

Parent v. Parent – Contested Custody Case
  • If Court Does Not Enforce Surrogacy Agreement, Classify Dispute Between Mary and Jack?

C) How does presence of Mary’s husband change things?

1) Status of Husband:

a) Legal father under most paternity statutes (marital presumption) but DNA testing could rebut presumption in most states.

b) Legal father under most AID statues;

c) Most Likely: Stepfather. As such, he may improve Mary’s custody claim under best interests analysis if K not enforced

ii genetic father wants to be released from k
  • Child Born With Downs Syndrome
  • Jack and Mary could consent to adoption or
  • Mary can assume custody and file complaint to establish paternity and child support against Jack

D) Prenatal Testing Reveals Downs Syndrome

  • Contractual Provisions Requiring Abortion: not likely to be enforced
  • Jack’s paternity can be established and his obligations enforced
Contractual Provisions Requiring Abortion: not likely to be enforced
  • Jack’s paternity can be established and his obligations enforced
  • Intended Adoptive Parent Gets Pregnant

F) & G) Unanticipated Expenses

  • Additional payments demanded by Mary legally unenforceable
  • Third party insurer liability unclear
prenuptial agreements
Prenuptial Agreements

Definition: Agreement to dispose of property in contemplation of death or divorce


Historically: No – against public policy

Modern: Most states enforce but heightened scrutiny:

1) Fair in procurement

• full disclosure

• voluntary (counsel, time to review,

knowledge of rights)

2) Fair in result (at time of agrmt)/ unconscionability standard (at time of death or divorce)

separation agreements enforcement and modification
Separation Agreements: Enforcement and Modification

- “arm’s length” parties

  • Provisions Regarding Property

• Negotiation/Enforcement

• No heightened scrutiny

• No full disclosure unless asked in discovery

• Result must be fair?

No-unconscionability standard

  • Provisions Regarding Alimony
  • • Negotiation/Enforcement:

Parties can waive or agree to any amount if not unconscionable

• Modification:

If K silent, cts can modify amt during per. of pymt. But parties can limit ct’s ability to modify if clearly stated in K

md no modification clause in k enforceable
• MD: “no modification” clause in K enforceable
  • Provisions Regarding Children

1) Child Custody & Visitation

• Negotiation/Enforcement:

Yes, but court cannot “rubber stamp”

• Modification -

Parties cannot limit ct’s ability to modify

2) Child Support

• Negotiation/Enforcement:

Parties not free to waive or set any amt – must comply with child support guidelines

MD – Incorporate vs. Merge

Incorporated but not merged – enforceable as contract & order

Merge – only enforceable as court order