New Scholarship: Rachel Rebouché, Contracting Pregnancy

We have covered surrogacy contracts before.  In the blog’s early days, we simply acknowledged that lawyers struggled with the issues raised in surrogacy contracts.  We covered the potential exploitation of surrogate mothers in 2008.  The following year, we discussed the attempts in many different jurisdictions to regulate surrogacy.  In 2010, we discussed surrogacy contracts in Greece and the scholarship of Aristides Hatzis.  We covered the intersection of surrogacy and celebrities in 2013.  Here, in 2017, we covered Deborah Zalesne’s work on genetic selection.

2020 brings a new chapter in the discussion, Rachel Rebouché’s article Contracting Pregnancy, which is now available on SSRN.  If you are teaching Baby M this year, you might want to read this to update your take on the case. 

Here is the abstract :

Several states recently have passed laws that permit and regulate gestational surrogacy, changing course from the prohibitions that characterized an earlier era. These statutes require mental health counseling before pregnancy and legal representation for all parties to the contract. Scholars and practitioners alike herald this legislation as the way forward in protecting the interests of both intended parents and surrogates. State law, however, may not resolve a recurrent tension over who controls prenatal decision making in gestational surrogacy agreements. Intended parents want authority to make decisions regarding the pregnancy. Contract provisions cater to that desire and support the broader assumption that parents should seek as much prenatal information as possible. Yet surrogates have the right, by statute and as patients, to manage their prenatal care.

Analyzing the most controversial terms of surrogacy contracts—those governing prenatal testing, prenatal behavior, and abortion—this Article demonstrates that neither statutory rights nor contractual remedies adequately address disputes over prenatal care. Rather, mental health professionals who provide pre-pregnancy counseling and lawyers who draft surrogacy contracts have greater effect on parties’ expectations and conduct. Lawyers, in implementing surrogacy contracts, help build trust between parties that induces compliance with otherwise unenforceable terms. When there is a conflict between the parties, lawyers diffuse it.

This Article identifies the consequences of relational contracting for surrogacy, including shielding parties’ behavior from view and entrenching the power of fertility agencies and brokers. It concludes by suggesting how law might challenge the dominance of professionals and agencies by opening the fertility market to a broader population of participants.

The Article is forthcoming in the Iowa Law Review.