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Publication Date

6-26-2024

Abstract

This Note discusses how the practice of commercial surrogacy is treated across the United States. Most notably, how the courts treat surrogacy contracts from state to state. A summary of how Canada views the practice of surrogacy will provide a general view into how the view of the practice is different across borders. It will be discovered that, while there is a federal law governing surrogacy in Canada, there is no federal law in either country that enforce surrogacy contracts or treat surrogacy contracts as valid contract between two adult parties. This is due to the preconceived notions of what constitutes a “mother” or a “parent” by statutes that are often as outdated as they are disregarding the will of two parties entering a mutual agreement in writing. It will be argued, throw a show of evidence, that federal enforcement of surrogacy contracts will ensure that these contracts are subject to legal scrutiny and care. As well, it will be shown that surrogacy contracts are not against public policy and are, in fact, economically beneficial. I will use British Columbia’s Family Law Act as an example of how surrogacy contracts should be involved in the surrogacy process. The Note concludes that an intent approach should be used when analyzing the rightful parents of a baby born via surrogacy and that surrogacy contracts should be enforced to protect both parties during the surrogacy process.

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60

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