The Edge of Contracts

Reports have it that surrogate motherhood is a thriving business in the Indian State of Gujarat. Most states in the U.S. enacted laws to regulate surrogacy after the imbroglio described in the Baby M case (109 N.J. 396, 537 A.2d 1227 (1988)). Four of my 1L Contracts students "argued" this case to the class and we used it as a springboard to discuss limits to what may be "commodified" and thus subject to contract law. From a normative point of view, the obligation to keep one's promises would lead to enforcement of surrogacy contracts. Similarly, the presumptive welfare-enhancing nature of such contracts would augur for enforcement. The nature of human beings as bearers of God's image as well as the covenantal structure of human relationships, however, suggest that the law exercise some caution in this area.

This linked article suggests that India should take some legislative action in this field: http://timesofindia.indiatimes.com/india/German-or-Indian-Surrogate-twins-in-legal-no-mans-land/articleshow/5286325.cms?sms_ss=email. This case is now before India's Supreme Court and I hope to be able to keep track of it.