Recent surrogacy debates center on what should happen when the parties to the surrogacy contract change their minds during the pregnancy. Surrogacy has been around a long time, but has changed with modern technology. Today, most surrogates carry a baby created by in vitro fertilization with an egg and sperm from separate individuals unrelated to the surrogate. In a recent issue that came to the forefront in the media, a single 50-year old male hired a surrogate in California to carry his child, created with his sperm and an anonymous egg donor. The surrogate became pregnant with three babies. The father under the surrogate contract told the surrogate to abort one of the fetuses as he only wanted two children. She refused and also decided she no longer wanted to be his surrogate and wanted custody of all three babies, once they were born of course. The issues that result are whether surrogate contracts are legal, how they may be breached if legal, and what the possible remedies are for this type of contract breach. Here, if the surrgoacy agreement is found to be valid, the father would have control and be the only legal parent of all three children. If the agreement is found to be invalid, the father has rights as the biological father, and the surrogate has rights as the birth mother and courts would likely treat this as a normal custody battle. Only time will tell how states will treat these disputes, and whether the Supreme Court may step in at some point to provide a clear rule of law.
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