The brave new world of choice of law

Cite this Article
Larry Ribstein, The brave new world of choice of law, Truth on the Market (December 11, 2010),

Suppose you’re a gay couple and you want to have a baby.  You could try adopting one and deal with the tangle of laws about gay adoption.  Or you could just plant some sperm and eggs in one or more surrogates and design one or more kids that are biologically yours. The variations are discussed in today’s WSJ.

Surrogacy is restricted in the US and in many countries, but other countries like India and Greece have decided to give their women income opportunities rather than obsessing over the ethical issues.  Firms that serve as intermediaries, such as PlanetHospital, will handle all of the logistics. 

One problem is that

[l]aws are vague and can conflict from country to country. In 2008, baby Manji was born to an Indian surrogate just weeks after the divorce of her Japanese parents-to-be. (The family wasn’t a PlanetHospital client.) According to a Duke University case study in legal ethics, it led to a tangle of Indian and Japanese law that first prevented the little girl from being issued a birth certificate, and later made it difficult for her father bring her home to Japan. Months went by. To fix the problem, Japan issued a special humanitarian visa.

But there’s a solution:  “PlanetHospital clients agree to settle disputes using arbitration under California law.”

The details are discussed in Chapter 8 of my and Erin O’Hara’s The Law Market (now available as a Google ebook).  Concluding a discussion of choice of law for surrogacy contracts, we note:

Surrogacy contracts only scratch the surface of the life-creation issues that loom on the horizon, from test tube babies to cloning. States are very likely to take years working out the answers, and these answers will surely differ. Meanwhile, the parties have a desperate need for certainty, since the creation of life triggers a lifetime’s worth of legal and other rights and obligations. Relying on federal law to produce this certainty sacrifices the experimentation that will be necessary for the law to ultimately generate sound policy. Contractual choice of law offers a potential alternative solution.

It’s not easy holding back the future in a globalized world with advanced technologies.