This comment will explain the necessity for federal regulation of surrogacy contracts by analyzing the current state of surrogacy laws across the United States. This will be accomplished by examining the fragmented state system and how this largely ignored area of the law has been a feeding ground for widespread forum shopping and inconsistent results. This comment will then address the public policy reasons in support of enforcing these contracts. Next, this comment will examine the avenues of congressional power for regulating these types of contracts. Lastly, this comment will propose that the federal government implement legislation containing key language from the Federal Arbitration Act (FAA), combined with portions of Illinois’ Gestational Surrogacy Act. The purpose of such legislation will be to instill a national public policy in favor of enforcing surrogacy contracts.
Brett Thomaston, A House Divided Against Itself Cannot Stand: The Need to Federalize Surrogacy Contracts as a Result of a Fragmented State System, 49 J. Marshall L. Rev. 1155 (2016)