Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood

THERE has been much debate about whether surrogate motherhood should be regulated within the realm of contract law' or family law.2 Both sides in the debate have generally used a very simplified view of one doctrine or the other. Some family law professors, for example, argue that contract law should not be applied in surrogacy cases because "parents, unlike courts, cannot make enforceable agreements concerning their child's custody."3 This distinction begs the question of whether contract principles should be used in certain instances of family relations. It also fails to recognize the many ways in which contract ideas already have entered the family realm.4 Those who press for use of the family law model in surrogacy often seem to be applying an idealized model that does not exist in practice,