Divergences Between Surrogacy Law and Practice

Brian Bix

The United States is an outlier among other nations on the matter of surrogacy. While other countries are cutting back on the practice (not allowing payments to surrogates beyond compensation for expenses, allowing use only by intended parents from their own countries, or prohibiting it entirely), the trend in the United States is in the other direction: more states authorizing surrogacy and enforcing surrogacy agreements, and more states authorizing commercial surrogacy (i.e., payments to surrogates beyond their expenses), with only a few states putting residential restrictions on who can use the process. In Bargaining about Birth: Surrogacy Contracts During a Pandemic, Rachel Rebouché reports that 47 states, “either through statute or case law” (P. 6, footnote omitted), authorize surrogacy. This article, and Rebouché’s previous work,¹ artfully explore the way that surrogacy is a practice that depends on a mixture of legal and extralegal norms.

The particular focus of the article is on how surrogacy practice was affected by the pandemic, with surrogates and intended parents negotiating restrictions on travel and potential disagreements regarding inoculation and isolation. On the whole, though, the particular complications of COVID are presented primarily as examples of more general truths about how surrogacy works.

Rebouché argues that state surrogacy statutes tend to “miss how contracting plays out on the ground” (P. 6). She observes that surrogacy agreements often contain many provisions that are legally or practically unenforceable. Some provisions, e.g., regarding medical care during the pregnancy, are frequently contrary to a (and constitutional) rights to bodily autonomy (Pp. 9, 11).² Other provisions are intrusive restrictions on the surrogate’s behavior, regarding, e.g., not allowing smoking or drinking alcohol (P. 8). Surrogacy “contracts can obligate a surrogate to give weekly reports or to allow intended parents to attend all medical appointments … . [However,] intended parents will not sue for breach if they miss a doctor’s appointment [and] no court would enforce a provision requiring a surrogate to give weekly reports.” (P. 16) As Rebouché points out, the point of the provisions in the surrogacy agreement is not to create standards to be applied in some later court fight; rather, “the process of drafting a contract creates relationships that foster a sense of obligation” (P. 14).

Much of Rebouché’s work on surrogacy looks at the role of lawyers and fertility clinic administrators. With surrogacy, “[l]awyers seek to keep clients out of court and in the agreements they negotiated” (P. 13).³ This does not distinguish surrogacy arrangements from most conventional commercial contracts, and this is fully noted by Rebouché, who cites to the work of Cathy Hwang and others, referring to publications that discuss the role of lawyers and agreements in commercial transactions.⁴

Surrogacy parallels many relational contracts in other settings in the importance of trust (P. 12). Discussing and drawing up detailed contracts can be important to the parties coming to know one another, helping each party to understand the needs and expectations of the others. And, as the article notes, when disputes arise, it will be for the lawyers and clinic administrators — working with the parties, not bringing suits in court – to mediate the disagreement (P. 13). Part of that persuasion process may well involve reference to the agreement (Pp. 15, 17-18), even though the lawyers know (while the parties may not) that the relevant provisions may be unenforceable. How willing parties are to comply with their agreements, the author notes, often depends on how satisfied they were with the negotiation process (P. 16), so the skills of the lawyers as intermediaries, both before and after the contract is signed, becomes as important as the exact terms included in the agreement.

One of Rebouché’s ultimate points in Bargaining About Birth (Pp. 5-6, 11, 30-31) is similar to ones raised, in different ways, by both the American legal realist, Karl Llewellyn,⁵ and the law and economics scholar, Ronald Coase⁶: that lawmakers should not assume that because they have enacted certain prescriptions that they have thereby changed people’s behavior accordingly. What happens in the shadow of either commercial or surrogacy law may be only a partial or warped reflection of the formal legal rules, with the rules being modified and supplemented by local social norms. The article ends: “Policymakers might question if the laws they write address those practices [of surrogacy contracting] and what new regulation of the fertility industry might accomplish or cost” (P. 31).

1. Bargaining about Birth can be seen as a follow-up to another fine piece on surrogacy practice, Rachel Rebouché, Contracting Pregnancy, 105 Iowa L. Rev. 1591 (2020).
2. Rebouché observes that while many state surrogacy statutes (here, the example is from New York) guarantee that the surrogate will “make all health and welfare decisions during the pregnancy” (P. 11, footnote omitted), surrogacy agreements commonly “include language about what medical procedures the surrogate will submit to throughout pregnancy regardless of those provisions’ enforceability or statutory protections.” (P. 9, footnote omitted).
3. A similar point is also made in June Carbone and Christina O. Miller, Surrogacy Professionalism, 31 Amer. Acad. Matrimonial Lawyers 1 (2018).
4. E.g., Cathy Hwang, Faux Contracts, 105 Va. L. Rev. 1025 (2019), cited and discussed at Pp. 14-16.
5. See, e.g., Karl N. Llewellyn, A Realistic Jurisprudence — The Next Step, 30 Colum. L. Rev. 431 (1930).
6. See, e.g., Ronald Coase, The Problem of Social Cost, 3 J. Law & Econ. 1 (1960).