ABSTRACT
This chapter examines the judicial and legislative responses and the public policy implications of surrogate parenting contracts from the perspective of a morality of care. This perspective, which owes much to the pioneering work of Carol Gilligan, elevates the bond between mother and child over the rights conferred by contract. The emphasis on relationships rather than rights is central to what Gilligan characterizes as a morality of care. Although the courts have had little opportunity to directly address the validity of surrogate parenting contracts, the cases on record demonstrate strong public policy arguments against both specific performance and the payment of money for an agreement to terminate a woman’s parental rights. The importance of natural ties between persons has been devalued by a rights tradition which relies upon the freedom to contract and the harm principle to uphold individual autonomy. On this view, people should be free to contract as long as they do not harm others in the process.
