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In Defense of Surrogacy Agreements: A Modern Contract Law Perspective

46 Pages Posted: 11 Mar 2013 Last revised: 19 Feb 2014

Yehezkel Margalit

Netanya Academic College; New York University School of Law

Date Written: March 10, 2013


The American public’s attention was first exposed to the practice of surrogacy in 1988 with the drama and verdict of the Baby M case. Over the last twenty-five years the practice of surrogacy has slowly but surely become increasingly socially accepted and even welcomed. This evolution serves to emphasize the bizarre judicial and legislative silence regarding surrogacy that exists today in the vast majority of U.S. jurisdictions. In this article I describe and trace the dramatic revolution that took place during the recent decades as the surrogacy practice has totally changed from one viewed as problematic and rejected to a socially widespread and accepted practice. As set forth below, this recent shift demands increasing legal recognition of the legality of surrogacy contracts and moderate regulation of their enforcement. In doing so, this article explores the various intrinsic contractual problems of surrogacy contracts - the problem of unequal power of the contracting parties, the problem of change of heart and the problem of changed circumstances. As presented the preliminary normative claim regarding those contractual problems was not properly addressed by classical contract law, however, with the development of modern contract law we are now supplied with a well-equipped framework and doctrines appropriate for dealing with such problems. In order to demonstrate my innovation I will represent one main solution that the modern contract law gives us for each given contractual problem. The article then concludes with an appeal to the legislature and judiciary for a legal framework and a suggested outline of the practical administrative-legal mechanisms for accomplishing the complete legal and social recognition of surrogacy contracts.

Keywords: Family Law, Contract Law, Modern Contract Law, Surrogacy Contract/Agreement, Change of Heart, Unequal Power of the Contracting Parties, Changed Circumstances, Renegotiation, Unconscionability, Surrogate Mother, Motherhood, Parent-Child, Surrogacy, Intended Parent, Intentional Parenthood

Suggested Citation

Margalit, Yehezkel, In Defense of Surrogacy Agreements: A Modern Contract Law Perspective (March 10, 2013). 20 William & Mary Journal of Women and the Law 423 (2014). Available at SSRN: or

Yehezkel Margalit (Contact Author)

Netanya Academic College ( email )


New York University School of Law ( email )

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