Stefanie Carsley, “Tort’s Response to Surrogate Motherhood: Providing Surrogates with a Remedy for Breached Agreements”

    Working Abstract

This paper investigates whether tort law could provide a remedy to a surrogate mother if
intending parents renege on their agreement and leave the surrogate to raise the child. It focuses
specifically on a situation in which a surrogate gives birth to a health baby and explores whether
she could claim compensation for the costs of child-rearing. Part 1 examines whether legal or
public policy issues would prevent a Canadian court from applying tort law in this instance. Part
2 considers the appropriate cause of action through which a surrogate mother could advance her
claim. This paper concludes that while there is no guarantee that a Canadian court would award a
surrogate compensation for child care expenses, a surrogate could be successful suing intending
parents in tort. Issues surrounding reproductive autonomy, child commodification, and pure
economic loss would not necessarily impede her suit, and negligence provides the strongest
avenue through which she could bring her claim. This article also explains that even if
unsuccessful, this claim could serve an educational function, as it could bring increased attention
to the issue that the law does not currently prevent or address situations in which intending
parents breach their surrogacy agreements.

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