Effects of a breach of the compensated surrogacy contract on the filiation established by judgment

Abstract

An comprehensive study of the consequences of the non-observance with surrogacy contract in relation to filiation is complex. The content of each contract and the effects of non-compliance are governed by the law of the place where the contract is concluded and each State has regulated surrogacy in accordance with its legislative policy. From all the existing models, in this work, we will take as a reference the legal system of those States that has provided for a compensated surrogacy process and whose resulting affiliation is established by judgment.

Based on this chosen model, the question we ask ourselves is whether any of the parties can breach any of its clauses, with the purpose of altering its cornerstone, that is, the establishment of filiation in favor of the parents of intention under the free and informed resignation of the gestational carrier.

Faced with this question, the objective of this work is to provide arguments that help to substantiate that the breach of any of the clauses of a surrogacy contract by one of the two signatory parties cannot imply a change in the establishment of the affiliation. The reason is that if the capricious modification of the opinion of the gestational carrier or the intentional parents were allowed after their signature, the predictability of the surrogacy contract would be undermined.

After this analysis, we will present some preliminary conclusions, given that achieving a more conclusive answer would require further research on the effects of non-compliance with all affecting-filiation clauses included in a surrogacy contract and, in any case, it would imply a detailed study of the consequences of the breach of the surrogacy contract in relation to the affiliation in each and every one of the national legal systems of reference that we have chosen, which we will do in future works.