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70 Hastings L.J. 595 (2018-2019)
Contracts for Children: Constitutional Challenges to Surrogacy Contracts and Selective Reduction Clauses

handle is hein.journals/hastlj70 and id is 595 raw text is: Contracts for Children: Constitutional Challenges to Surrogacy Contracts and Selective Reduction Clauses HOLLY JONEST Are babies commodities ?Are they aproper subject of contract law?Many states say no, holding surrogacy contracts void as against public policy. Others, however, enforce surrogacy contracts. In the rare instances when disputes arise over selective reduction clauses and/or parentage, should the intended parent be able to enforce the contract? If so, what remedies should be available when a surrogate mother breaches the contract? This Note examines the several constitutional challenges that can be raised in opposition to the enforcement of a surrogacy contract, and concludes that the constitutional rights of the surrogate mother outweigh the contractual rights of the intended parent(s) to a surrogacy contract. Thus, surrogacy contracts should be deemed void and, therefore, unenforceable. However, this should not eliminate surrogacy arrangements if surrogate gestational mothers and intended parents: (1) fully and properly investigate each other and have the difficult conversations about what should be done in the event that multiple pregnancies result; (2) discuss what will be done in the event that fetal abnormalities are discovered; and (3) discuss what will be done if the surrogate changes her mind about giving the baby up to the intendedparents. Though uncomfortable, these conversations are bound to expose differences in opinions, allowing surrogates and wishful parents to make fully informed decisions in deciding to enter into surrogacy arrangements. J.D. Candidate 2019, University of California, Hastings College of the Law; Senior Production Editor, Hastings Law Journal. I would like to thank Professor Radhika Rao for her expertise and guidance and the Hastings Law Journal Notes team for their feedback throughout this process. I would also like to thank my husband and my family for their love and support.