This Article explores the public policy doctrine relating to contracts generally and examines specific public policies set forth in state adoption statutes. The Article concludes that surrogate parenting agreements are 1) incompatible with consent provisions of state adoption statutes, 2) inconsistent with state laws prohibiting baby-selling, and 3) inconsistent with state adoption provisions that provide for a thorough investigation of the adoptive parents in order to ensure that the adoption serves the child's best interests. Accordingly, this Article suggests that as state legislatures debate the best means of addressing the issue of surrogate parenting, they should recognize that surrogate parenting agreements must be restructured to avoid violation of adoption statutes. Surrogate parenting agreements that comply with adoption requirements in all respects except for failure to comply with adoption consent provisions should be voidable. Surrogate parenting agreements that violate baby-selling prohibitions or provisions requiring an investigation of the adoptive parents, however, should be void.
Part I of this Article examines the public policy doctrine as it applies to traditional contract law. Part II explores the adoption process and the public policies underlying it. Part III examines the incompatibilities between surrogate parenting agreements and the adoption statutes. Part IV describes the modifications required in the surrogate process in order to make surrogate parenting agreements enforceable and concludes by looking at surrogacy in the context of society at large.
Barbara L. Atwell, Surrogacy and Adoption: A Case of Incompatibility, 20 Colum. Hum. Rts. L. Rev. 1 (1988), http://digitalcommons.pace.edu/lawfaculty/3/.