Journal of Law and Policy


Devon Quinn

First Page



The 1986 Baby M case was the first American court ruling regarding the validity of surrogacy. The contentious custody battle between the intended parents and their surrogate highlighted the issues and fears associated with the practice, impacted legislation throughout the United States, and captured national media attention. Since 1986, however, the landscape of the American family has changed -- gay marriage has been legalized in the United States, one in eight American heterosexual couples struggle with fertility issues, women are more likely to wait longer to have children, and developments in technology such as in-vitro fertilization offer new fertility options for people who desire to have their own children. Unfortunately, a barrage of unclear, outdated, and inconsistent state laws stands in the way of people who desire to become parents via surrogacy and those who desire to help them. In place of these laws, an intimate and altruistic contract such as an agreement between a surrogate mother and intended parents should be managed under the Choice Theory of Contracts. By approaching these agreements as “making a team to become a family” and providing thoughtful clauses to protect the interests of both parties, surrogacy under the Choice Theory of Contracts could be a certain, viable option for people who desire to become parents and those who wish to aid them in achieving their goal of having a family.