d cons of this risky business transaction. Unfortunately laws on surrogate parenting aren’t very helpful. Increasing numbers of surrogate custody cases are finding their way into the courtrooms. The most dramatic problem arises when the surrogate mother decides she wants to keep the baby.Whether she decides early or late in the pregnancy, at birth, or after the child is born, the ultimate issue is whether she or the infertile couple have parental rights. How is the law to respond to this kind of problem? Normally people would agree that a contract is a contract and therefore the infertile couple should be the ones to receive the baby. Unfortunately for some of us more sympathetic people this decision is not that simple. By changing her mind the surrogate mother is showing maternal feelings that are surely not reprehensible. Although she has promised to give up the baby her change of heart seems more understandable than dishonorable. After all how can a woman truly be expected to know how it will feel to give birth to a child and then have to give it up? These are very good questions that tend to leave one undecided as to which party’s demand is justifiable and should be upheld. Instead of deciding surrogacy issues on the basis of the law and policy of the states, judges could look for guidance from the U.S. Constitution. Constitutional arguments can be made on both sides of the classic surrogacy dispute involving the mother who changes her mind about giving up her child. Resolution of the constitutional issues will depend ultimately upon assessing and weighing the various factors at stake. Like decisions based on contract and criminal law, constitutional decisions will take account of the party’s interests, the child’s interests, society’s interests, and the effectiveness of legalization and regulation as opposed to prohibition. Many Americans remained unaware of these dramas, but virtually everyone in the...
