The problem of unenforceable surrogacy contracts: Can unjust enrichment provide a solution?

Abstract

The fact that surrogacy contracts are unenforceable can cause problems if a surrogate decides that she wishes to keep the child. When this happens, the intended parents cannot bring a claim in contract compelling her to give the baby up to them or even for the return of money paid to the surrogate. Intuitively, it appears unfair that the surrogate can keep the child and the money while the intended parents are left with nothing. However, enforcing such contracts could be oppressive to the surrogate and detrimental to the child's welfare. In this article, we consider whether the law unjust enrichment will allow for the return of money paid under such contracts. We argue that this branch of the law can provide a solution to the problem of unenforceable surrogacy contracts that strikes a fair balance between the interests of the surrogate and intended parents while also placing the child's lifelong welfare paramount.