Cited Article

Surrogacy and Insurance: The Call for Statutory Reform in Ohio

Case Citation

In re F.T.R., 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634 (2013)

Background

Aside from the termination of parental rights provisions in the PA [surrogate parentage agreement] at issue, we conclude a PA is a valid, enforceable contract unless enforcement is contrary to the best interests of the child. While the traditional defenses to the enforcement of a contract could apply, none appear to render the entire PA in this case unenforceable.

Citing Quote

Law review articles have tracked the status of surrogacy contracts around the world.8 Only a limited number of nations have explicitly addressed surrogacy by statute or through court rulings.9 Several countries have rejected movements to permit surrogacy within their countries. Some countries that recognize surrogacy have legalized altruistic surrogacy but not commercial surrogacy.10 These conflicting approaches have transnational implications, one result being that some American states with less restrictive or no laws on the issue have become interstate and international medical surrogacy tourism destinations. It is estimated that over 1,400 babies are born in the United States each year for international parents with the assistance of a surrogate, sometimes American, sometimes foreign.11

fn 8 See, e.g., Daniel Gruenbaum, Foreign Surrogate Motherhood: Mater Semper Certa Erat, 60 Am. J. Comp. L. 475 (2012); Ailis L. Burpee, Note, Momma Drama: A Study of How Canada's National Regulation of Surrogacy Compares to Australia's Independent State Regulation of Surrogacy, 37 Ga. J. Int'l & Comp. L. 305, 309 (2008–2009); Austin Caster, Note, Don't Split the Baby: How the U.S. Could Avoid Uncertainty and Unnecessary Litigation and Promote Equality by Emulating the British Surrogacy Law Regime, 10 Conn. Pub. Int. L.J. 477 (2010–2011); Sarah Mortazavi, Note, It Takes a Village to Make a Child: Creating Guidelines for International Surrogacy, 100 Geo. L.J. 2249 (2012); Sasha N. Swoveland, Note, Surrogacy and Insurance: The Call for Statutory Reform in Ohio, 26 J.L. & Health 143 (2013).

fn 11 Swoveland, supra note 8, at 164. The United States is second only to India in providing surrogates. India, with no law on the issue, permits both commercial and altruistic surrogacy arrangements and has become a popular medical surrogacy tourism destination for couples seeking lower-cost surrogacy arrangements without being mired in red tape. Mortazavi, supra note 8, at 2271–72; Kathleen Parker, Editorial, Surrogacy Exposed, Wis. State J., May 26, 2013, at E3. See also Emanuella Grinberg, The highs and lows of foreign surrogacy, CNN Living (Mar. 29, 2012) available at http://www.cnn.com/2012/03/29/living/sacred-thread-foreign-surrogacy/ (last visited June 28, 2013).

In re F.T.R., 2013 WI 66, 349 Wis. 2d 84, 130, 833 N.W.2d 634, 656-5

Article Publication Date

2013

Volume

26

Issue

1