NCJ Number
52208
Journal
California Law Review Volume: 66 Issue: 3 Dated: (MAY 1978) Pages: 611-622
Date Published
1978
Length
12 pages
Annotation
THIS ARTICLE DEMONSTRATES THAT POLICIES JUSTIFYING CRIMINAL LAW REGULATION OF TRADING IN CHILDREN ARE INAPPLICABLE IN THE CASE OF CONTRACTUAL ARRANGEMENTS.
Abstract
WHEN A COUPLE CONTRACTS WITH A CARRIER FOR A CHILD, THE COUPLE BARGAINS FOR TWO PROMISES. FIRST, THE CARRIER AGREES TO BE INSEMINATED WITH THE HUSBAND'S SEMEN AND TO CARRY THE CHILD TO FULL TERM. SECOND, THE CARRIER CONTRACTS TO SURRENDER ALL PARENTAL RIGHTS AS OF THE DATE OF THE CHILD'S BIRTH. FROM THE LEGAL STANDPOINT, A COUPLE ENTERING INTO A BABY CONTRACT RISKS CRIMINAL SANCTIONS. OF VARIOUS CIVIL LAWS THAT HAMPER THE IMPLEMENTATION AND ENFORCEMENT OF BABY CONTRACTS, SOME OF THE MOST PROBLEMATIC ARE THOSE GOVERNING PROOF OF PATERNITY. PROOF OF PATERNITY MAY BE FURTHER THWARTED BY A COMPLEX SET OF EVIDENTIARY PRESUMPTIONS. THE CONTRACT TO CARRY A CHILD CAN BE CONSIDERED AS AN ALTERNATE FORM OF CHILDBEARING OR ADOPTION DECISION AND, AS SUCH, CAN BE ASSESSED IN TERMS OF ITS UNIQUE POTENTIAL AND PROBLEMS. INSOFAR AS THE CONTRACT TO CARRY A CHILD INVOLVES THE TRANSFER OF AN INFANT FROM THE NATURAL MOTHER TO AN ADOPTIVE FAMILY, IT IS SIMILAR TO PRIVATE ADOPTION. SEVERAL CONCERNS ARISE IN THE CASE OF BABY CONTRACTS THAT ARE NOT PRESENT TO THE SAME DEGREE IN PRIVATE ADOPTION, BUT MOST CAN BE DEALT WITH THROUGH REGULATION. CONTRACTS TO BEAR A CHILD, IF PROPERLY REGULATED, POSE NO SERIOUS THREAT TO SOCIAL INTERESTS AND SHOULD BE PERMITTED. APPROPRIATE REGULATION SHOULD AIM TO ASSURE THAT ESSENTIAL TERMS ARE INCLUDED IN THE CONTRACT AND THAT THE CONTRACT IS ENTERED INTO ADVISEDLY AND WITHOUT DURESS. AS A CONDITION OF LEGALITY AND ENFORCEABILITY, ALL CONTRACTS SHOULD BE REQUIRED TO PROVIDE FOR ADEQUATE LIFE AND HEALTH INSURANCE. CASE LAW RELATED TO THE ISSUE OF CONTRACTUAL ARRANGEMENTS IS REVIEWED. (DEP)