Contract Law To Enforce The Contract
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Yes, the Contract Act could have been used to enforce the surrogate mothers contract. Comparable to many other contractual contracts, the surrogacy is made up of two parties who voluntarily enter into an agreement. The principle of freedom of contract provides that the courts should, to the extent possible, respect the freedom of the individual to enter into binding contracts. As a result, when a child is born, the surrogate may transfer the child (and parental rights) to the parents’ board of directors, thereby extinguishing its own rights as the legal parent of the child.
The concern with surrogacy, however, is that a woman can not fully consent to give birth to a child for someone else, as she can not know whether she will want to hand over the child at birth as a result of the hormonal changes she suffers. However, contract law can deal with this in the same way as it does with an actor who refuses to perform on stage. In such circumstances, the specific performance would be oppressive; therefore, contract law instead uses the remedy for damages. This would mean that the surrogate would have had to compensate the other commissioning couple for their disappointment, but would not have violated their basic freedoms.
In addition, the contract may be invalidated on the basis of public policy. Forceing a dissident mother to give up her child is clearly against public policy, so that her right to withdraw from the agreement can be upheld at all stages of pregnancy. However, this right can be extinguished once the child has been handed over. Another concern is that commissioning parents may interfere with the freedom of the surrogate by incorporating into the contract terms which are manifestly unfair. For example, it could be expressly stated that if the child is disabled, a surrogate mother should have an abortion.
This term would not have been complied with and could have been removed without the contract being completely invalidated. In contract law , the courts reserve the right to exercise jurisdiction over binding agreements by invalidating unfair terms and conditions. In any event, the conduct of a medical intervention without the consent of the surrogate mother at the time of the operation is unlawful and would constitute both a battery and an assault. But what if the commissioning parents are back out of the agreement when the surrogate is pregnant or when the child is born? Harm would not compensate the surrogate in an appropriate manner if she did not want the child to be liable. It’s a less straightforward area. It is suggested that the default rules should assign responsibility to the commissioning couple because they are responsible for the conception of the child.
Therefore, it would be their responsibility to give the child up for acceptance. Another final concern is that commercial surrogacy is exploitative, since it appeals primarily to women who are economically unstable and who are ‘forced’ to take over to make money. In addition, if the terms are extremely one-sided for the benefit of a party with superior bargaining power, the doctrine of inconsistency will render the contract unenforceable. Non-payment and non-compliance with surrogacy contracts were a major part of the United Kingdom ‘s strategy to discourage surrogacy.
This was due to public policy reasons, but these reasons are now out-dated and have caused the law to develop in a way that endangers the welfare of surrogate-born children. Clearly, the legislation needs to be reformed in the long term. Surrogacy deals with the sacred act of childbearing; therefore, there will always be issues of public policy that need to be addressed when deciding how to make the law more comprehensible. The danger of leaving the surrogacy legislation in the way it is, however, outweighs any remaining issues. In addition, surrogacy has become more widely accepted in society, and any developments in law should reflect that.