Respond to each classmate 100 words a piece. This is the question they had to answer. (Discuss the public policy defense to contract enforceability. After reading the excerpt from the case of Baby M,

Respond to each classmate 100 words a piece. 

This is the question they had to answer. (Discuss the public policy defense to contract enforceability. After reading the excerpt from the case of Baby M, discuss what role public policy had in the contract.)

Classmate 1 

All it takes is one flawed element in a contract to result in the contract being void, voidable, or unenforceable.  Once this happens, the contract is subject to defense.  Contract defenses are in place to ensure that both parties involved have entered a contract voluntarily, and that all the information presented is accurate.  The defenses of a contract include capacity, misrepresentation, fraud, duress, illegality, and undue influence.  If any of these are found to be true, then the contract is considered to be void, voidable, or unenforceable.

            In the matter of the New Jersey case known as the Baby M case, the Supreme Court ruled the contract between the two parties as invalid, due to surrogacy being in conflict with the law and public policy of the state.  They went on to say that payment to a surrogate mother is both illegal and degrading to women.  Furthermore, the conflict was due to laws prohibiting the use of money in connection with adoption, law requiring proof of parental unfitness or abandonment before termination of parental rights is ordered or an adoption is granted, and laws that make surrender of custody and consent to adoption revocable in private placement adoptions. 

           New Jersey law prohibits paying or using money in connection with an adoption of a child, unless the excepted fees are from an approved adoption agency.  As a result of this case, many states either outlawed surrogacy entirely or just outlawed paid surrogacy.  This case has since been used as a benchmark for other surrogacy cases, as in Robinson v. Hollingsworth.

Classmate 2 

In the case of Baby M, there was a surrogate mother who entered a contract with a biological father to carry a baby through full gestation of a pregnancy (Binion, 1992). This contract was signed, and the surrogate mother was to receive $10,000 upon delivery and other expenses and relinquish parental rights.  A few days after the delivery of Baby M, the surrogate mother wanted to have full parental rights which was not a part of the original contract.  Although this contract was formed with the three elements an offer, acceptance, and consideration, one was potentially flawed due to duress (Jennings, 2017).  Due to duress and the surrogate mother's attachment to the baby, this provided a defense to possibly enforce the contract.  Likewise, public policy was used to bridge the gap between the surrogate mother and the biological father. This case went to a lower court and then on to the New Jersey State Supreme Court and it was declared that the contract was invalid. The court ruled in favor of the biological father to received full custody of the baby and the surrogate mother was given visitation parental rights (Binion, 1992). Since surrogacy hadn’t really been addressed by states during this time, this case made a great impact on framing how other states would handle surrogacy.  Since surrogacy touched women's reproduction, this raised high interest in women especially as related to women's rights. 

     Due to the lack of laws and regulations around surrogacy during the mid-eighties, this Baby M case stirred a lot of public interest. As a result, public policy on this matter was re-visited and set the motion for states legislatures to prepare and modify state laws as needed. Many states were triggered to adopt the same ruling as the Baby M case and made these types of contracts invalid.