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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November 29, 2001
First Step: Classify Type of Agrmt.
Intended Adoptive Mother:
Jill (Jack’s wife)
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
Public Policy Grounds for Refusal to Enforce?
Genetic Mother: Jill (or Donor Egg)
Genetic Father: Jack
Alternative Type of (More Common) Surrogacy Agmt:
Implications for Statutory or Public Policy Objections to Surrogacy?
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
D) Prenatal Testing Reveals Downs Syndrome
F) & G) Unanticipated Expenses
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)
- “arm’s length” parties
• No heightened scrutiny
• No full disclosure unless asked in discovery
• Result must be fair?
Parties can waive or agree to any amount if not unconscionable
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
1) Child Custody & Visitation
Yes, but court cannot “rubber stamp”
• Modification -
Parties cannot limit ct’s ability to modify
2) Child Support
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