• DOI:10.1111/j.1748-720X.1988.tb01048.x
• Corpus ID: 20125279

Choosing Family Law over Contract Law as a Paradigm for Surrogate Motherhood

@article{Capron1988ChoosingFL,
  title={Choosing Family Law over Contract Law as a Paradigm for Surrogate Motherhood},
  author={Alexander M Capron and Margaret Jane Radin},
  journal={Law, Medicine and Health Care},
  year={1988},
  volume={16},
  pages={34 - 43}
}

• A. Capron, M. Radin
• Published 1 March 1988
• Law
• Law, Medicine and Health Care

Among the many new forms of human reproduction,’ none raises more problems of public policy and of law than the practice of what is known, rather inaccurately, as “surrogate motherhood” or “surrogacy.”’ The central policy issue is settling on the paradigm that should govern surrogate motherhood, a model of family relations (adoption) or of contractual relations (sale of a product or service). And the central legal issue is whether any restrictions on personal choice that follow from the policy selected-and especially from a rejection of the contractual model with its implication of free choicearc constitutionally permissible. We conclude that surrogate mother arrangements should be handled from the perspective of adoption. As recent judicial decisions have demonstrated, existing law on parents and children is largely adequate, and the emergence of surrogacy as a social practice does not require major “law reform” efforts. Furthermore, neither these rulings nor legislation proposed in many jurisdictions to ban commercialized surrogacy intrude impermissibly on the range of choices about reproduction protected by the Constitution of the United States. Although we conclude that commercialized surrogacy may be prohibited, we think the weight of any legal sanctions should be concentrated against those who arrange such transactions for profit rather than against the panics (parents and would-be parents) themselves. And we believe that unpaid surrogacy should be permitted.