Capron, in his insightful article on surrogate mother contracts, concludes that until medical science develops better means of overcoming infertility or until social attitudes change regarding adoption, abortion, and childlessness, there is no need for legislation making surrogate mother arrangements easier.
Capron uses the trial judge's reasoning in the "Baby M" case as a springboard into the issue. As he correctly states: "hard cases make bad law." I think Capron either ignores or minimizes the key issue regarding surrogate motherhood. Namely, it achieves a socially desirable objective: specifically, providing children for couples who cannot otherwise procreate by conventional means.
The "Baby M" case is merely another example of the law coming to terms with biotechnical future shock. This is not new. In recent years, we have had to grapple with ethics and technology in the areas of organ transplants, transplants from animals, abortion, test tube babies, defining death, forgoing life-sustaining treatment, etc.
Capron lists legally complex and emotionally anguishing problems in the area of surrogate contracts. They include practical concerns for a child's welfare, such as where the outcome is not a healthy child or where the child and/or its siblings have emotional problems caused by the surrogate arrangement.