I have to admit that law-related tv-shows are my weakness. Not simply because of what I research, but because they are so confrontational and witty (the best of them at least). And when the topic is contract law, I almost want to download the episode to make sure it is saved for eternity. This was the case with last week’s ‘The Good Wife’ episode depicting a legal dispute arising out of the enforcement of a surrogacy agreement.

*Spoiler alert*

In a nutshell, the case shows Cathy and her husband Brian, who conclude an agreement (which they call an agency contract) with university student Tara, for her to bear and deliver the couple’s baby and be paid in return. With Cathy having donated the egg, subsequently fertilized with her husband’s sperm, the couple would be the baby’s biological parents. It seems the couple befriended their surrogate mother to ease the entire process. However, any affection that had manifested between them disintegrates when the doctor who artificially inseminated Tara lets them know about the 85% chance of the fetus developing the Patau syndrome, a rare yet severe chromosomal abnormality (Google imaging that is not for the faint-hearted). Taking the medical prognosis seriously, the couple indicates to Tara that they do not want to keep the baby. Since it would be her who would undertake the abortion procedure, Tara decides against it and is willing to give birth to the baby, claiming that she feels there is nothing wrong with the fetus.

Jumping over some additional points of law, such as a potential malpractice suit against the hospital screening Tara’s pregnancy and the determination of fetus viability according to the law of the state of Illinois, the case has fundamental contract law concerns. The couple and Tara agreed on a clause stating that if there are substantial signs of birth defects, the surrogate mother must terminate the pregnancy. As Tara would not go through with the abortion, this leads to breach of contract, and Cathy and Brian sue her for specific performance. The judge then needs to determine whether the clause relating to pregnancy termination is enforceable. The tv-show judge eventually rules that it would not, as control over one’s body is a constitutional principle and parties may not contract around it. Moreover, the tv-show judge also rules that a provision to compel an abortion is an affront to public policy.

Now the interesting question is: just how close was this tv-show to real life law? The answer: as close as it gets.

Different states have different laws on the matter. Still, one of the most popular American cases on surrogacy (popular enough to lead to an ABC miniseries starring John Shea, the writing of a book by Mary Beth and an appearance by the latter on Dr. Phil), is a case that voices universal problems with commercial surrogacy: the Baby M case [1]. William Stern and Mary Beth Whitehead agreed to have her inseminated with his sperm and upon the birth of the child terminate her parental rights in order to allow Elizabeth Stern to adopt the baby. At the moment of giving up her parental rights, Mary Beth would have been compensated with $10,000. After giving birth to the child, Mary Beth started having second thoughts and convinced the Sterns to allow her to have the child for a week, promising to bring her back – which she eventually did not want to do anymore. William sued for enforcement, and the court invalidated the surrogacy contract as a whole on the grounds of it being contrary to public policy given that the “payment of money to a “surrogate” mother [is] illegal, perhaps criminal, and potentially degrading to women” [2].

Interestingly, earlier this year the Wisconsin Supreme Court reached a somewhat diverging ruling in Rosecky v. Schissel [3]. The fact pattern follows the Baby M case quite closely, with the exception that Marcia (the infertile woman) was close friends with Monica (the surrogate mother) whose eggs were fertilized using David’s sperm (Marcia’s husband). Before the baby was born, Monica and Marcia had a falling out and the first refused to cooperate in order to allow Marcia to legally adopt the child. They took the case to court, and while the circuit court determined the surrogacy agreement to be unenforceable, the Supreme Court developed a rationale essentially based on contract law. Given that Justice Annette Kingsland Ziegler tested the facts against the basics of contract law (offer/acceptance/consideration, etc.) and found there to be a legally concluded contract, it was thus further determined that “[e]nforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child’s life” [4].

In other words, surrogacy arrangements are not unenforceable per se, unless they are contrary to the best interests of the child, but the enforcement of a clause bringing about the termination of parental rights is still a no-go from the perspective of the judiciary. What is remarkable about this judgment is the fact that unenforceability is not based on public policy, but rather on procedural arguments (no voluntary termination of parental rights and no basis for involuntary termination). It was Chief Justice Shirley S. Abrahamson who addressed public policy in her concurring opinion and in spite of upholding the view that the surrogacy agreement was not in itself void, considered that public policy should have played a more important role in the court’s rationale: “[c]ourts should not sacrifice statutes or public policy considerations on the altar of freedom of contract” [5].

The market for babies is more tolerated in some countries than in others. While the mere idea of paying for a child is unimaginable from the perspective of some legal systems (e.g. France), surrogacy is differentiated on the basis of costs in others. In the Netherlands, surrogacy (draagmoederschap) is as such allowed as long as it is not commercial. However, the line between what is commercial and what is altruistic can be very fine. Michael Sandel refers to the price of an Indian surrogate mother to be $6,250 [6]; Mary Beth Whitehead was to receive $10,000 in 80’s New Jersey. What is supposed to be covered by a price to make it acceptable? Medical needs? Rent payments in the final months of pregnancy when the carrier cannot work? A car to help the mother get around when she has swollen feet? Undoubtedly these are matters for courts to determine on a case by case basis, but the questions are designed to show just how different outcomes can be even when surrogacy is placed in the middle of the tolerance segment.

Leaving aside the moral issues that surrogacy poses, probably the most practical outcome of diverging public tolerance and legislation on this matter is the creation of surrogacy routes. For instance, in the Netherlands, out of the 25 surrogacy cases heard by first instance courts between 2008 and 2013, two were related to couples who had employed Indian surrogate mothers [7]. Although the case details do not go into depth as to why these couples went to India for their babies, we can guess at least a couple of reasons. First, altruistic surrogacy entails the existence of an altruist. Someone who is selfless enough to carry a child without any financial incentive; second, when there is no such person, it is more expensive to contract with a Californian surrogate mother than it is with one of her Indian equivalents. Still, even more fundamental problems arise out of putting a price tag on surrogacy: it is not always that surrogacy is really voluntary, and what the global village gets by monetizing such activities may go against human dignity, with women becoming baby factories for the subsistence of their families (try visualizing the Matrix human battery fields).

From a harmonization point of view, I cannot help but wonder: is surrogacy a matter that goes beyond the public policy of a given country/state and is something that needs a de minimis international standard in order to protect the potentially vulnerable actors in the ‘service’ chain and prevent spillover effects? The fact that such rules do not even exist on private international law issues arising out of surrogacy agreements shows that until so far no agreement has been reached [8]. Yet agreement is long overdue.

Going back to ‘The Good Wife’, the last court scene hints that there is nothing to be done about the abortion, as Cathy and Brian cannot impose it on Tara. With some fast-forwarding creativity, this means that Tara will give birth to a baby who will very likely have severe development deficits if not physical defects. Does that mean the real parents can bring her to court again to ask for damages for defective performance? Maybe this will re-emerge in the next season. But in the meantime, there is something uneasy about translating a newborn with physical defects into defective performance and quantifying the situation in pecuniary value.

After all, as the Baby M decision reads, “There are, in a civilized society, some things that money cannot buy.” Or at least there should be.

[1] In re Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 02/03/1988).

[2] In re Baby M, ¶ 32.

[3] Rosecky v. Schissel, 2013 WI 66.

[4] Rosecky v. Schissel, ¶ 61.

[5] Rosecky v. Schissel, ¶ 78.

[6] Michael Sandel, ‘What money can’t buy’, p. 3.

[7] www.rechtspraak.nl

[8] Note of The Hague Conference on Private International Law, ‘The private international law issues surrounding the status of children, including issues arising from international surrogacy arrangements’, http://www.hcch.net/index_en.php?act=text.display&tid=181.