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Born Breach: The Challenge of Remedies in Surrogacy Contracts
Mazer, Deborah S.
Mazer, Deborah S.
Abstract
This Note examines the legal approaches to surrogacy and argues that the realities of gestational surrogacy in the United States necessitate a predictable and clear legal approach. In Part 1, this Note surveys the state of surrogacy and highlights the pressing need for legal certainty. Part II considers and rejects common arguments against the enforceability of surrogacy contracts. Using recent examples from California, Part III demonstrates American courts' increasing comfort with adjudicating reproductive disputes in a freedom of contract framework, and encourages this judicial approach for future surrogacy disputes. The Note further argues that it is imperative that lawyers advising parties to surrogacy contracts consider liquidated damages for "tragic breaches" of contract. By honoring well-negotiated liquidated damages provisions, courts can respect the wishes, autonomy, and intentions of the contracting parties.