Proponents of surrogate gestation contracts base their case on both the constitutional privacy rights of persons involved in the contract and the notion that contractual agreements are capable of sufficiently protecting all interests involved. This article first speculates on how courts might handle surrogate gestation contracts under existing laws and offers arguments for and against such contracts. Although some commentary on the contractual aspect of the agreement exists, little attention has been given to the privacy arguments of the parties. The major focus of this article, therefore, is upon the nature of the privacy claims asserted by the prospective parents and the surrogate gestator. Only if the procreational choice of the parties is a protected one do the custody or contract rules become relevant. Consequently, this article traces the procreation cases through their historical development to show that although a consistent rationale for protection of women's rights has not been fully developed by the Court, the Court has taken an important step through its protection of choice. In conclusion, the article suggests that protection of choice is, in fact, the basis for the Court's proper role in regulating procreational decisions.

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Notes/Citation Information

M. Louise Graham, Surrogate Gestation and the Protection of Choice, 22 Santa Clara L. Rev. 291 (1982).


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