Incubator or Cultivator: Defining the Role of the Surrogate

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gestational surrogate, traditional surrogate, unjust enrichment, special performance, promissory estoppel


The availability of reproductive technology makes it possible for one woman to supply the genetic material to create the child and another woman to gestate and give birth to the child. This division of labor has required courts to have to adjudicate maternity. A few state legislatures have enacted statutes designating the legal mother of a child conceived as the result of a surrogacy arrangement. In other jurisdictions, the courts must decide whether the surrogate or the contracting woman should be recognized as the child’s legal mother. In order to accomplish that purpose, courts have relied upon several different tests. As a result, the woman who gives birth may be deemed the legal mother in one state. In another jurisdiction, the woman who contributes the genetic material used to create the child may be adjudicated as the legal mother. These conflicting results are not in the best interests of the child, the contracting couple or the surrogate. In order to prevent forum shopping and in the interestof judicial economy, instead of creating tests to allocate maternity, the courts should rely on standard contracts principles and conclude that the surrogate is never the legal mother of the child. In cases where there is a valid contract, the court should enforce the contract. The remedy for the surrogate’s breach should be specific performance. Therefore, the court should order the surrogate to surrender the child to the contracting couple. If no written surrogacy contract exists or the jurisdiction does not recognize surrogacy contracts, the court should apply the doctrines of promissory estoppel or unjust enrichment, to prevent the surrogate from retaining custody of the child. It should not matter whether the surrogate is an incubator (gestational surrogate) or a cultivator (traditional surrogate). In either case, the surrogate should not be permitted to ignore the contract and keep the child.


A Working Paper version of this article was published in SSRN as Lewis, Browne C., Incubator or Cultivator: Defining the Role of the Surrogate (March 16, 2010). Cleveland-Marshall Legal Studies Paper No. 10-187. Available at SSRN: or