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LEGAL STUDIES RESEARCH PAPER SERIES
PAPER NO. 19-07-11
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July 2019 (submitted to SSRN)
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Surrogacy Arrangements and the Conflict of Laws

1990 Wisconsin Law Review 399
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by
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Susan Frelich Appleton

Lemma Barkeloo & Phoebe Couzins Professor of Law
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This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3430799
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SURROGACY ARRANGEMENTS AND THE
CONFLICT OF LAWS
SUSAN FRELICH APPLETON*

Since the recent and controversial advent of surrogacy arrangements,
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some state legislatures have sought to restrict surrogacy, other jurisdictions
maintain a permissive approach, and uniform legislation is still ahead of its
time. The resulting coexistence of divergent regulatory regimes makes this area
rich for conflict-of-laws analysis.
In this Article, Professor Appleton reveals the severe limits our federal
system places upon restrictive states when they encounter evasive efforts by local
residents. In her analysis, Appleton uses four variations of a hypothetical "worst-
case scenario," in which residents from a restrictive state conduct part or all of
a surrogacy transaction in a permissive jurisdiction in the hope of obtaining a
legal adoption. In examining the hypothetic8Is, Appleton applies seven choice
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oflaw approaches and suggests strategies and pitfalls for the evading individuals
and the states imposing the restrictions. The author next explores the reach of
criminal and civil deterrent measures against out-of-state participation in sur-
rogacy transactions. She also investigates custody adjudications arising from the
breach of a surrogacy contract and the application of the Uniform Child Custody
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Jurisdiction Act and the Parental Kidnapping Prevention Act. Professor Apple-
ton concludes by offering practical guidance to states seeking to regulate surro-
gacy as well as a national perspective on surrogacy regulation.
• Professor of Law, Washington University in St. Louis. A.B. 1970, Vassar College;
J.D. 1973, University of California at Berkeley.
In an earlier and lengthier incarnation, this paper was a report prepared for and sub-
mitted to New Jersey's Commission on Legal and Ethical Problems in the Delivery of Health
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Care (often called the New Jersey Bioethics Commission). The Commission requested the
report to assist it in formulating recommendations for the New Jersey legislature to consider
in the drafting and enactment of statutes in response to In re Baby M, 109 N.J. 396, 537
A.2d 1227 (1988).
I gratefully acknowledge the financial support provided by the Commission as well as
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the intellectual support offered by Alan J. Weisbard, Executive Director of the Commission,
and Anne C. Reichman, Associate in Law at the Commission. In addition, Herma Hill Kay,
Richard W. Jennings Professor of Law at the University t>f California at Berkeley, provided
enormously valuable assistance not only through her comments on earlier drafts of this paper
but also through the introduction to conflict of laws she gave me many years ago as my
teacher.
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A number of my colleagues at Washington University School of Law helped me by

discussing particularly problematic sections of the paper. For this contribution I thank Kath-
leen F. Brickey, Dorsey D. Ellis, Barbara J. Flagg, Jules B. Gerard, Stanton D. Krauss, Richard
B. Kuhns, D. Bruce La Pierre, Stephen H. Legomsky, Ronald M. Levin, Frank W. Miller
and Robert B. Thompson. I also thank for participating in similar discussions the faculty of
St. Louis University School of Law (who invited me to present a work-in-progress seminar
on this paper) and Marianne Wesson of the University of Colorado School of Law. The
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careful research assistance of Carol Napier, Washington University School of Law, class of
1991, helped me fill several gaping holes in the footnotes. Any flaws in the analysis, of course,
remain mine alone.
print research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=
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400 WISCONSIN LAW REVIEW
I. INTRODUCTION
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The emergence of "surrogate" mother 1 contracts as a means for
infertile couples to acquire a child who is biologically related to one
spouse and whose arrival is not preceded by a wait of several years has
prompted vigorous legislative activity aimed at regulating, restricting
or completely banning the practice. 2 State legislatures rarely consider
conflict-of-laws questions when drafting and enacting statutes. 3 Yet past
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experience with such intimate and life-altering decisions as marriage,
divorce, adoption, child custody and abortion has taught that a state's
restrictive legal regime may simply draw the state's residents to a ju-
risdiction more hospitable to their efforts to effectuate their choices.
Surrogacy promises a virtually irresistible solution for many couples
whose yearning for a child is often as intense and desperate as the
feelings that have prompted "marriage evasion,"4 migratory divorce,
out-of-state adoption, kidnapping of children by noncustodial parents,
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and foreign abortion. As a result, legislative responses to surrogacy
should avoid focusing exclusively on the purely domestic arrangement
and should also take into account the likelihood of the multijurisdic-
tional case.
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1. Many have criticized this label as applied to a woman who gestates and bears
a child. E.g., M. FiBLD, SURROGATE MOTHERHOOD 4-5 (1988). See infra notes 14-26 and
accompanying text (terminology).
2. For example, New Jersey's Commission on Legal and Ethical Problems in the
Delivery of Health Care (the New Jersey Bioethics Commission) has convened a special Task
Force on New Reproductive Practices, which has formulated a number of anti-surrogacy
policy recommendations for ultimate submission to the legislature. New Jersey Comm'n on
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Legal and Ethical Problems in the Delivery of Health Care, Problems and Approaches in
Health Care Decisionmaking 341 (May 1990) (Task Force's recommendations approved by
the Bioethics Commission) (hereinafter N.J. Bioethics Comm'n) (on file with the Wisconsin
Law Review). Groups in other states have also studied the issue. See L. ANDREWS, BETWEEN
STRANGERS: SURROGATE MOTHERS, EXPECTANT FATHERS & BRAVB NEW BABIES 229 (1989)
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(activity in other states). Some legislatures have already spoken on the subject. Compare,
e.g., MICH. COMP. LAws ANN. §§ 722.855 & 722.859 (West Supp. 1989) (making void and
unenforceable surrogacy contracts and criminalizing commercial surrogacy) with NEv. REv.
STAT. § 127.287(5) ( 1987) (exempting surrogacy agreements from prohibition against payment
for adoptive placement). See generally Andrews, The Aftermath of Baby M: Proposed State
Laws on Surrogate Motherhood, HAsTINGS CENTER REP., Oct.-Nov. 1987, at 31 (summarizing
and cataloguing legislative activity); Pierce, Survey of State Activity Regarding Surrogate
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Motherhood, 11 Fam. L. Rep. (BNA) 3001 (Jan. 29, 1985) (same); Sherman, Uniform Sur-
rogacy Laws Gaining Acceptance, Nat'!. L.J., Apr. 3, 1989, at 14, col. 1 (state legislation and
proposed uniform surrogacy laws).
3. See B. CuRRIE, Married Women's Contracts: A Study in Conflict-of-Laws
Method, in SELECTED EssAYS ON CONFLICT OF LAws 77, 82, 84 (1963).
4. This term, which refers to efforts to marry elsewhere in order to evade the
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restrictions on entry into marriage imposed by one's home state, comes from the Uniform
Marriage Evasion Act, promulgated by the Commissioners on Uniform State Laws in 1912
and withdrawn in 1943 after only five states had adopted it. See NATIONAL CONFERENCE
OF COMM'RS ON UNIFORM STATE LAws, HANDBOOK OF THE NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAws AND PROCEEDINGS 147 (1943).
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1990:399 Surrogacy and Conflict of Laws 401
Consistent with this hypothesis, any state seeking to restrict sur-

rogacy (subsequently called a "restrictive state") ought to focus its con-
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cern about conflict-of-laws issues on those generated by a surrogacy
transaction's possible connections with a jurisdiction whose laws are
more permissive than those likely to be enacted locally (subsequently
described as a "more hospitable" or "more permissive" jurisdiction).
Both restrictive and permissive regimes already exist in this country, s
and a model for "uniform" surrogacy legislation, containing both re-
strictive and permissive alternatives, promises to multiply the possi-
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bilities for conflicts as different states enact one or the other option. 6
True, the flurry of surrogacy-inspired legislative activity occurring vir-
tually simultaneously in many different states creates an ideal oppor-
tunity for every state to consider carefully in this particular context all
those conflict-of-laws questions usually ignored until courts must con-
front live multijurisdictional controversies. Yet the legislatures with
the most to learn from such foresight are those attempting to adopt
significant restrictions on or disincentives to surrogacy. Indeed, as this
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Article shows, assuming residents of a restrictive state truly want to
participate in surrogacy, the existence of more hospitable jurisdictions
will significantly limit local control. Absent federal legislation or a single
uniform act (without alternatives) adopted by all the states, restrictive
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states can hope to achieve their goals only through resort to untested
extensions of criminal law or creative solutions making the family
formed through surrogacy vulnerable to continuing risks.
To support these conclusions, this Article examines the conse-
quences of efforts by residents of a restrictive state to evade the policy
choices of their local legislature by establishing connections with a more
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hospitable jurisdiction.
A. The Problem
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In a "worst-case scenario," from the perspective of a restrictive

state, individuals seeking to evade local restrictions will attempt to
S. See supra note 2 (comparing existing legislation in Michigan and Nevada). Sev-
eral states have taken a restrictive approach. See Sherman, supra note 2.
6. The National Conference of Commissioners on Uniform State Laws recently
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promulgated the Uniform S~atus of Children of Assisted Conception Act, which the American
Bar Association's House of Delegates has approved. American Bar Ass'n, Summary of Action
of the House of Delegates 1989 Midyear Meeting 52 (Feb. 6-7, 1989). This model statute
contains two alternative provisions on surrogacy. One alternative ("Alternative A") permits
but regulates surrogacy contracts by means of a preconceptualjudicial proceeding that closely
resembles the regulation proposed in New York and Nevada, see infra note 18, while the
second alternative ("Alternative B") makes surrogacy agreements void. UNIF. STATUS OF
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CHILDREN OF ASSISTED CoNCEPTION ACT, 9B U.L.A. 87, 93-100 (Supp. 1990). See Sherman,
supra note 2. North Dakota has adopted "Alternative B." N.D. CENT. CODE§§ 14-18-0l to
14-18-07 (Cum. Supp. 1989).
Enactment of one alternative in some states and the second in others would exacerbate
the very conflicts that a uniform law might otherwise be designed to resolve.
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obtain a judicial decree of adoption in a more hospitable jurisdiction.
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Although such evasive efforts may take many different forms, this Ar-
ticle analyzes four paradigm cases (hypothetical fact patterns): 7
(1) First, a couple from the restrictive state and a surrogate from
the same state might conclude an otherwise local arrangement by com-
pleting adoption proceedings along with the transfer of custody and
payment in a more hospitable jurisdiction.
(2) In a variation on the same transaction but with an effort to
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establish additional connections to the more hospitable jurisdiction, a
couple from the restrictive state and a surrogate from the same state
might travel to another jurisdiction to prepare and sign the agreement
(containing an explicit stipulation for this jurisdiction's law), to perform
the artificial insemination, and to deliver the resulting child-from the
uterus of the surrogate to the arms of the couple; payment and adoption
in this jurisdiction might follow.
(3) Alternatively, a couple from the restrictive state might seek a
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surrogate domiciled in a more hospitable jurisdiction, then travel there
for the execution of the agreement, the insemination, the transfer of
custody, the payment and the adoption proceedings.
(4) Finally, a woman from the restrictive state, eager to receive
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payment for serving as a surrogate and for relinquishing the resulting
child, might travel to a more hospitable jurisdiction to participate, with
a couple domiciled there, in both a transaction and an adoption in that
jurisdiction.
Although each of these multijurisdictional fact patterns hypoth-
esizes the involvement of two different jurisdictions-a restrictive state
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and a jurisdiction with laws more hospitable to those seeking to par-

7. The selection of the four hypothetical multijurisdictional fact patterns analyzed
below initially proceeds from two related premises. First, domiciliaries of restrictive states
eager to enter a surrogacy transaction (either as adoptive parents or as a surrogate) will
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manipulate contacts, but no more than necessary, to increase the transaction's connections
with a jurisdiction that allows surrogacy. For example, they might cross state lines or national
boundaries to execute the agreement, to perform the artificial insemination, to deliver the
child, and to initiate the adoption proceedings. Without a premise of purposeful evasion, a
much longer list of multijurisdictional fact patterns might be considered, including, for ex-
ample, situations in which connections with the restrictive state or the permissive jurisdiction
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occur quite fortuitously, as when an out-of-state surrogate gives birth while briefly visiting a
restrictive state for reasons unrelated to her surrogacy agreement. Second, the following
analysis assumes, at least at first, that in every case consensual out-of-state adoption pro-
ceedings will occur, either before conception or after birth, through the parties' efforts to
bring certainty and finality to their arrangement. Of course, the legislature and courts of a
restrictive state can decide how to respond to adoption petitions filed locally; further, if the
restrictive state enacts anti-surrogacy laws making a local adoption decree difficult or im-
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possible to obtain, then the parties' efforts to evade such restrictions would naturally lead
them outside the state. Because of the respect required for judicial decrees, see infra notes
16-17 and accompanying text, concluding a surrogacy arrangement connected with the re-
strictive state by means of out-of-state adoption proceedings presents a "worst-case scenario"
for testing the reach of the restrictive state's laws and policies.
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1990:399 Surrogq,cy and Conflict of Laws 403
ticipate in surrogacy arrangements-in reality a surrogacy arrangement

might easily have connections with three or more jurisdictions. To the
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extent that connections with a third or still additional jurisdictions
would alter the conclusions drawn below, the discussion will note such
differences. In large part, however, the analysis of two-jurisdiction cases
provides a basic framework applicable with only minor adjustments
to cases connected to an even larger number of states or foreign coun-
tries.
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Throughout the examination of the four variations of the "worst-
case scenario," the analysis will focus on whether cooperating partic-
ipants in a consensual agreement might successfully evade limitations
on surrogacy, civil or criminal, that a restrictive state may have its own
policy-based reasons to impose.
Although criminal prohibitions and the threat of civil litigation
might well discourage participation in the arrangements described here,
such measures might not always achieve the restrictive state's goals.
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For example, as the era preceding Roe v. Wade 8 teaches, the criminality
of abortion did not stop the practice. 9 The same period also teaches
that states eager to halt a practice may be unwilling to punish some
participants, preferring to regard them as victims rather than perpe-
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trators; just as most criminal abortion laws aimed at the abortionist
but not the pregnant woman, 10 so too many states seeking to outlaw
surrogacy may criminalize the activities of the broker or other inter-
mediary but not those of the adoptive couple or surrogate. Prosecutorial
discretion might narrow the application of even more expansive laws.
And civil litigation initiated by one party will deter haphazardly at best
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when, by hypothesis, collperating parties have sought to avoid local

restrictions. For all these reasons, criminal prohibitions and grounds
for civil suits, even if available in the restrictive state, may not eliminate
the need to analyze the out-of-state adoption and its effect in the re-
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strictive state.
Whatever the importance of such adoption proceedings, however,
deterrent measures-criminal and civil-deserve analysis as well. This
Article considers whether and to what extent, despite adoption, are-
strictive state can reach through such deterrent measures the out-of-
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state conduct of individuals seeking to avoid local law.

Further, although surrogacy arrangements always begin as appar-
ently consensual transactions and usually culminate in consensual
8. 410 u.s. 113 (1973).
9. Although, by 1900, all states had enacted statutes outlawing or significantly
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restricting abortion, mid-twentieth century statistics document the ineffectiveness of such

measures. Estimates placed the number of abortions as high as two million per year, of which
30% to 70% were thought to be illegal. Appleton, Abortion in I ENCYCLOPEDIA OF CRIME
AND JUSTICE 1, 3 (S.H. Kadish ed. 1983).
10. /d. at 2-3.
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adoptions, sometimes the consensual relationship breaks down. In
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these cases, the arrangement might ultimately produce a nonconsensual
termination of the surrogate's parental rights and a nonconsensual
adoption or, alternatively, a custody adjudication. As a result, this Ar-
ticle will also consider multijurisdictional cases that produce such out-
comes, particularly the latter, in which special jurisdictional statutes-
the Uniform Child Custody Jurisdiction Act 11 and the Parental Kid-
napping Prevention Act 12-dominate the analysis of the conflict-of-laws
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questions.
Finally, this Article suggests ways in which states seeking to restrict
surrogacy 13 might try to accomplish this goal and recognizes the real
limits on any single state's ability to effectuate successfully such policy
choices. These conclusions and the analysis that yields them not only
highlight important consequences of federalism but also provide some
practical guidance for any states that have considered restricting or
regulating surrogacy without anticipating the conflict-of-laws issues.
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B. Terminology
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For purposes of the analysis that follows, the term "surrogacy"
ought to encompass any arrangement in which a woman ("surrogate")
agrees before conception to bear the biological child of a man not her
husband and to relinquish the child to that man and to his wife, if he
is married ("adoptive couple"). 14 Though formal adoption by the bi-
ological father ("semen-provider") and his wife is not a necessary ele-
ment in this definition of surrogacy, 15 the practice of surrogacy is often
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11. UNIF. CHILD CusTODY JuRISDICTION AcT, 9 U.L.A. pt. I, at 123 (1988).
12. 28 u.s.c. § 1738A (1988).
13. In this Article, I shall not attempt to join the debate about how legislatures (or
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courts) ought to respond to surrogacy on the merits. Such questions have received extensive
and thoughtful attention elsewhere. See, e.g., L. ANDREWS, supra note 2; M. FIELD, supra
note 1; B. ROTHMAN, RECREATING MOTHERHOOD: IDEOLOGY AND TECHNOLOGY IN A PA-
TRIARCHAL SociETY (1989); Radin, Market-Inalienability, 100 HARv. L. REv. 1849 (1987);
Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender
Neutrality, 1990 Wis. L. REv. 297. Rather, I hope to show the difficulties that will confront
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a state that, on its own, has decided to restrict the practice.

14. N.J. Bioethics Comm'n, supra note 2, at 335 (proposed definition of surrogacy
for the Commission formulated by Alan J. Weisbard, its Executive Director). See also Task
Force on Reproductive Practices, New Jersey Bioethics Comm'n, Minutes (May 3, 1990)
(simpler definition adopted by Task Force) (on file with the Wisconsin Law Review). These
definitions cover gestational surrogacy as well, in which the child born by the surrogate has
been conceived with the ovum of the adoptive wife. See L. ANDREWS, NEW CONCEPTIONS
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6-7 (1984) (discussing "egg donation," "attificial embryonation" and "embryo adoption").
15. Of course, single men might enter contracts with surrogate mothers. Further,
the law may not require formal adoption by the semen-provider himself. See infra note 228
and accompanying text (who is "parent"); but see infra note 38 (presumption of legitimacy
may make surrogate's husband the legal father).
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understood to entail consensual adoption. 16 Indeed, despite the wide-

spread publicity generated by surrogacy arrangements that do not result
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in consensual adoptions, for example the Baby M case, 17 consensual
adoptions occur quite often. In addition, proposals introduced in New
York and Nevada as well as one alternative in a so-called "uniform"
act would authorize surrogacy arrangements under a regime in which
a court approves the agreement and recognizes the adoptive couple as
parents before conception, issuing in effect a preconceptual adoption
decree.l 8 Further, formal adoption, whenever it occurs, culminates in
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a nonmodifiable judicial decree that accords to the adoptive couple the
status of "parents" of the child for all purposes and brings a surrogacy
arrangement to a final conclusion. If rendered by a state court, an
adoption decree is entitled to respect throughout the United States,
where full faith and credit requirements control, 19 and even if rendered
in a foreign country, it quite possibly earns similar respect here under
principles of comity. 20 We must therefore assume that many individ-
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16. See, e.g., L. ANDREws, supra note 14, at 197.
17. In reBaby M, 217 N.J. Super. 313,525 A.2d 1128 (Ch. Div. 1987), ajfd in part
and rev'd in part, 109 N.J. 396, 537 A.2d 1227 (1988).
18. Legislation proposed in New York would require judicial approval of all sur-
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rogacy arrangements before conception, and such approval would produce an enforceable
agreement. S. 1429, 1987-1988 N.Y. REo. SESS. (Feb. 3, 1987). A different bill, recently
introduced in Nevada, also requires judicial approval before conception; it requires inves-
tigation of the parties by the welfare department and recognizes the "intended parents" as
parents upon the child's birth, but it does allow the surrogate 180 days after insemination
to terminate the agreement and assume the role of parent upon birth. A.B. 180, 1989 NEv.
LEGIS. (Feb. 7, 1989). Both bills effectively accomplish the adoption of the intended child
preconceptually by recognizing the adoptive couple (the "intended parents") as the child's
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parents, though in Nevada this consequence does not become finally binding on the surrogate
until 180 days after the last insemination. "Alternative A" of the UNIF. STATUS OF CHILDREN
OF AsSISTED CONCEPTION ACT, 9B U.L.A. 93-100 (Supp. 1990), which served as a model
for the Nevada proposal, formulates a similar procedure. See supra note 6.
19. U.S. CoNST. art. IV,§ I; 28 U.S.C. § 1738-1738A (1988); see, e.g., Yarborough
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v. Yarborough, 290 U.S. 202 (1933) (under full faith and credit clause, a final award of child
support in one state cannot be modified by second state, the .child's new domicile, despite
the second state's interests in awarding additional support); Fauntleroy v. Lum, 210 U.S. 230
(1908) (under full faith and credit clause, a judgment conclusive in one state, even if based
on a mistake of law, must have the same conclusive effect in sister states, regardless of the
second state's interests to the contrary).
Because "full faith and credit" requires a sister state to accord the same faith and credit
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that a judgment or decree receives in the rendering state, a decree subject to modification in
the rendering state would likewise be modifiable in other states. See New York ex rei. Halvey
v. Halvey, 330 U.S. 610, 615 (1947).
These policies also require federal courts to respect state court judgments, see Davis
v. Davis, 305 U.S. 32, 40 (1938), and require recognition of the judgments of the courts of
United States territories and possessions, see 28 U.S.C. § 1738 (1988). Finally, case law has
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established that state courts must respect the judgments offederal courts. See Dupasseur v.
Rocherau, 88 U.S. (21 Wall.) 130, 135 (1875); Metcalf v. Watertown, 153 U.S. 671, 676
(1894).
20. See, e.g., Hilton v. Guyot, 159 U.S. 113 (1895); see generally E. ScoLBS & P.
HAY, CONFLICT OF LAws 961-81 (1982). The Uniform Adoption Act places adoption decrees
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uals trying to avoid a restrictive state's surrogacy limitations will seek
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the certainty and finality offered by an adoption decree.
Despite the routine inclusion of adoption proceedings in surrogacy
arrangements, if such proceedings become an opportunity for a state
to enforce its own restrictions (or those of another jurisdiction) and
thereby to frustrate the intentions of the parties, then the participants
may well begin to eliminate formal adoption as a routine step. Indeed,
surrogacy may well flourish even without the finality and legal protec-
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tion provided by a judicial decree of adoption. After all, if a man who
contracts with a woman trusts her to keep her promises to carry their
child to term, to take reasonably prudent prenatal care, and to relin-
quish the child upon birth, how much additional trust must he have
to believe that she will honor her promise to give him and his wife
permanent, exclusive custody of the child, even without a piece of paper
from a court formalizing this arrangement? For this man's equally trust-
ing wife, de facto motherhood may be functionally equivalent to legal
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motherhood, particularly if the child's origins are not widely known. 21
As a result of the real likelihood of agreements in which informal cus-
tody arrangements replace formal adoption proceedings, the term "sur-
rogacy" must encompass this variation on the prototypical case.
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Similarly, despite the large number of arrangements in which all
parties willingly participate from inception through culmination, the
meaning of "surrogacy" must include the occasional case in which the
consensual relationship deteriorates, as it did in Baby M. 22 In such
cases, a court in a jurisdiction appropriately connected with the case
might issue an adoption decree over the objections of one of the parties,
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as the lower court did in Baby M. 23 Because a nonconsensual adoption

issued by foreign countries in a manner consistent with due process on a par with those
issued in the United States. UNIF. ADOPTION AcT § 17, 9 U.L.A. pt I, at 69-70 ( 1988).
21. First, if no one questions the apparent mother-child relationship, the semen-
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provider's wife will have the opportunity to behave as if she were the child's adoptive mother,
even in the absence of formal adoption.
Second, courts have recognized that an individual may acquire the status of parent
informally through her day-to-day interactions with a child and the resulting psychological
bond formed. See, e.g., Guardianship of Phillip B., 139 Cal. App. 3d 407, 188 Cal. Rptr. 781
( 1983) (recognizing, over natural parents' objections, visitors as psychological and de facto
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parents of institutionalized child, for guardianship purposes); Ross v. Hoffman, 33 Md. App.
333, 364 A.2d 596 (1976) (mother loses custody to long-term "babysitter"), aff'd, 280 Md.
172, 372 A.2d 582 (1977); Painter v. Bannister, 258 Iowa 1390, 140 N.W.2d 152 (1966)
(recognizing, over natural father's objection, child's grandfather as "father figure" for custody
purposes); see a/so J. GoLDSTEIN, A. FREUD & A. SOLNIT, BEYOND THE BEST INTERESTS OF
THE CHILD 17 (2d ed. 1979) (strong parent-child relationship grows from interaction, com-
panionship and shared experiences).
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22. In re Baby M, 217 N.J. Super. 313, 525 A.2d 1128 (Ch. Div. 1987), aff'd in part
23. Judge Sorkow terminated the parental rights of Mary Beth Whitehead and
granted an adoption to Elizabeth Stem. In re Baby M, 217 N.J. Super. 313, 525 A.2d 1128
(Ch. Div. 1987).
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decree is a judicial decree nonetheless, the effect in the restrictive state

should not differ significantly from that yielded by consensual adoption
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decrees. Alternatively, disagreement between the parties might produce
a custody battle, as Baby M unfolded in the New Jersey Supreme
Court. 24 With litigation to resolve the parties' disputes possibly oc-
curring at any number of different times, from immediately after con-
ception through well after the child's birth, the definition of"surrogacy"
underlying a thorough analysis of multijurisdictional cases must be
broad enough to include all of these variations.
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Finally, the definition must be able to accommodate situations in
which a broker, a physician or midwife, and/or other intermediary
participates25 in the arrangement as well as those in which the parties
act without such assistance. 26 Throughout, this Article will focus on
the extent to which the restrictive state's laws and policies might or
might not govern all such surrogacy cases.
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II. ANALYSIS OF MULTIJURISDICTIONAL SURROGACY CASES
A. Surrogacy Arrangements Concluded by Adoption Proceedings

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1. EFFECT OF ADOPTION
a. First hypothetical
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For the first hypothetical, assume that a state enacts substantive

laws that restrict surrogacy by outlawing commercial surrogacy
(through prohibitions that apply to the immediate parties and to bro-
kers or intermediaries) and by declaring unenforceable all surrogacy
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24. In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988).

25. A broker might, for example, serve as a clearinghouse for introducing couples
seeking to hire surrogates to women interested in so serving. A physician might, for example,
perform the artificial insemination of the surrogate.
26. Alternatively, in some cases the prospective surrogate and adoptive couple might
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make all of their own arrangements without the help of a broker. Nonetheless, the law may
regard as a "broker" an attorney who does not introduce the primary parties but instead
merely draws up the contract in return for money or valuable consideration or who serves
as counsel in the adoption proceedings.
Artificial insemination does not require the assistance of a physician, see, e.g., Horn-
stein, Children by Donor Insemination: A New Choice for Lesbians, in TEST-TUBE WoMEN:
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WHAT fUTURE FOR MOTHERHOOD? 373, 375 (R. Arditti, R. Klein & S. Minden eds. 1984)
(turkey baster); further, surrogacy arrangements could rely on coital, rather than artificial,
insemination. Nonetheless, a physician or midwife might provide other assistance during the
surrogate's pregnancy or delivery of the child, and such intermediaries might or might not
know that they are participating in a surrogacy arrangement.
print research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3
ed
HYPOTHETICAL 1
iew
LOCAL ARRANGEMENT IN RESTRICTIVE STATE CONCLUDED
BY OUT-OF-STATE ADOPTION AND PAYMENT
Restrictive More Hospitable

State's Contacts: Jurisdiction's Contacts:
domicile of surrogate child reliquished for adoption

domicile of adoptive couple payment
rev
execution of agreement adoption proceedings
artificial insemination
birth of child
agreements, commercial or otherwise. 27 In this event, local parties in-

terested in consummating an agreement that violates these restrictions
might travel outside the restrictive state, probably to another state
rather than to a foreign country, 28 to effectuate their plans. Once beyond
er
the restrictive state's borders, they might participate in an exchange of
the child for money and initiate adoption proceedings. 29
Certainly, local parties committed to surrogacy might willingly
undertake even more substantial efforts to connect their arrangement
pe
with a more hospitable jurisdiction, as later scenarios illustrate. Yet
hypothesizing this most minimal and transparent attempt to manu-
facture out-of-state contacts provides an instructive vehicle for ex-
amining a number of threshold jurisdictional issues separately from
the choice-of-law questions that pervade the ensuing analyses. 3 Fur- °
ot
27. For the moment, the actual details of the restrictive state's laws will be less
significant than the assumption that this state will limit the practice to a greater extent than
some other jurisdictions.
28. Travel to another state will usually, though not always, require less distance,
cost and inconvenience. As the analysis that follows explains, moreover, the legal conse-
tn
quences of connections with another state may help the parties achieve their goals more
successfully than similar connections with a foreign country. See infra notes 65-66 and ac-
companying text.
29. The primary objective of the first hypothetical is to show how parties from a
restrictive state might try to evade the law of their particular state. The same general analysis
should follow from fact patterns in which the adoptive couple and the surrogate come from
different but similarly restrictive jurisdictions. As a result, a three-jurisdiction scenario will
rin
yield like conclusions so long as the most permissive jurisdiction serves as the adoption
forum.
30. Although the adoption proceedings hypothesized in this case ought to raise
choice-of-law questions, American adoption courts routinely avoid such questions by applying
their own law. See infra note 51 and accompanying text. Further, if such choice-of-law ques-
tions were confronted squarely in a case like this, the parties could not plausibly request the
application of the adoption forum's more permissive law, in light of current constitutional
ep
constraints, see infra note 54 and accompanying text, and under virtually any choice-of-law
theory, see infra note 53 and accompanying text. As a result, these theories receive attention
only in later contexts raising more substantial issues about their application. See infra notes
88-185 and accompanying text.
Pr
ed
ther, if cooperating parties from a restrictive state can avoid its laws
even in this case of obvious evasion, then states seeking to ban or limit
iew
surrogacy may find such information useful. So imagine that parties to
an otherwise local arrangement go elsewhere after the child's birth sim-
ply to conclude their deal. 31
This most transparent attempt to manufacture out-of-state con-
tacts through an out-of-state adoption and payment would probably
fail under prevailing principles of adoption jurisdiction-unless the
adoption forum undertook uncompromising efforts to become a "mill"
rev
for out-of-staters, an approach no state has taken yet.
First, the Interstate Compact on the Placement of Children (en-
acted throughout most of the United States32) mandates cooperation
and communication between states involved in multistate adoptions. 33
Yet the Compact explicitly exempts from its coverage a parent's bring-
ing a child into any state and leaving the child with any such relative; 34
this exemption, by its own terms, should encompass most surrogacy
arrangements, in which the biological mother relinquishes the child to
er
the biological father. As a result of this exemption, even in states ad-
hering to the Compact in order to regulate interstate adoptions, mul-
tijurisdictional adoptions resulting from surrogacy arrangements would
not be covered. 35
pe
Second, authorities agree that adoption jurisdiction rests at least
in part on domicile, traditionally that of the child or, according to some
modem courts, that of the adoptive parent, as an alternative. 36 The
31. Despite its different purpose, this hypothetical tracks a classic query in conflicts
literature in which scholars have asked whether an obviously manufactured, minimal con-
nection with a second jurisdiction ought to change the outcome of an otherwise wholly
ot
domestic case. See, e.g., D. CAVERS, THE CHOICE OF LAW PROCESS 185 (1965); R. CRAMTON,
D. CuRRIE, & H. KAY, CoNFLICT OF LAws: CAsEs-CoMMENTs-QuEsTIONS 146 (4th ed.
1987).
32. Hartfield, The Role of the Interstate Compact on the Placement of Children in
Interstate Adoption, 68 NEB. L. REv. 292, 295 (1989). See, e.g., Mo. ANN. STAT.§ 210.620
tn
(Vernon 1983 & Supp. 1989) (list of complementary laws).

33. The Act states that its purpose is to promote interstate cooperation so that a
state in which "a child is to be placed may have full opportunity to ascertain the circumstances
of the proposed placement, thereby promoting full compliance with applicable requirements
for the protection of the child," and so that "the states from which the placement is made
may obtain the most complete information on the basis of which to evaluate a projected
placement before it is made." Mo. ANN. STAT.§ 210.620 (Vernon 1983 & Supp. 1989) at
rin
art. I; see H. CLARK, THE LAw OF DOMESTIC RELATIONS IN THE UNITED STATES 911-12
(2d ed. 1988); Hartfield, supra note 32.
34. See, e.g., Mo. ANN. STAT.§ 210.620 (Vernon 1983 & Supp. 1989), at art. VIII:
This compact shall not apply to:
(a) the sending or bringing of a child into a receiving state by his parent, steppar-
ent, ... or his guardian and leaving the child with any such relative or nonagency
rep
guardian in the receiving state.

35. The Compact most probably contemplates a "genuine" multistate adoption-
that is, one in which the child will reside in the "receiving state," not simply be present
temporarily for the adoption proceedings, as this scenario hypothesizes.
36. E. ScoLES & P. HAY, supra note 20, at 541-43; see H. CLARK, supra note 33,
d
we
child's "domicile of origin" is that of his parents. In a surrogacy case,
the child would almost certainly take the surrogate's domicile, 37 at least
until a determination of paternity38 and in the absence of a precon-
ceptual or prenatal judicial decree tantamount to an adoption, as var-
ious legislative proposals would accomplish. 39 In any event, in the
ie
present scenario, the child would be regarded at birth as a domiciliary
of the restrictive state. With respect to the adoptive couple, who are
competent to have "domiciles of choice," most authorities require pres-
ev
ence plus intent to remain or intent to make the place one's home, for
the time at least.40
at 870-72. According to Scoles and Hay, courts in Arizona, Illinois, Massachusetts, New
Jersey, Tennessee, Delaware and Pennsylvania have found valid an adoption from a court
at the adoptive parents' domicile, even when the child was domiciled elsewhere. E. ScoLES
rr
& P. HAY, supra, at 542-43 n.5.
The Restatement (Second) of Conflict of Laws (hereinafter Second Restatement) rec-
ognizes the domicile of the child or the adoptive parent as alternative bases of jurisdiction.
The Second Restatement also requires the court to have personal jurisdiction over the adop-
tive parent and either the child or the person with legal custody of the child. RESTATEMENT
e
(SECOND) OF CONFLICT OF LAws § 78 (1971). The requirement of personal jurisdiction
presents no problem in any of the initial adoption scenarios hypothesized in this analysis
because all assume the willing participation in the proceedings of all ofthe adult parties. But
see infra notes 68, 128-29 and accompanying text (nonconsensual adoptions).
pe
The Uniform Adoption Act also provides for adoption jurisdiction in "the place in
which, at the time of filing or granting the petition, the petitioner or the individual to be
adopted resides in or is in military service or in which the agency having the care, custody,
or control of the minor is located." UNIF. ADOPTION AcT § 4(a), 9 U.L.A. pt. I, at 22 ( 1988).
37. Mississippi Band of Choctaw Indians v. Holyfield, 109 S. a. 1597, 1608 (1989)
(traditionally, illegitimate child's domicile determined by that of mother); REsTATEMENT
(SECOND) OF CoNFLICT OF LAws§ 14 (1971); E. ScoLES & P. HAY, supra note 20, at 197.
38. Even if the law were to attribute the father's rather than the mother's domicile
ot
to the child, paternity must first be established. Indeed, in cases in which the surrogate is
married, her husband might well be presumed the child's father, absent a contrary deter-
mination of paternity. See, e.g., Michael H. v. Gerald D., 109 S. Ct. 2333 ( 1989) (virtually
conclusive presumption of legitimacy upheld against constitutional challenge); Holland v.
Holland, 188 Conn. 354, 357, 449 A.2d 1010, 1012 (1982) (clear, convincing and satisfactory
tn
proof necessary to rebut presumption of legitimacy); Coleman v. Hudson, 396 So. 2d 1024,
1026 (Miss. 1981) (nothing less than proofbeyond a reasonable doubt can rebut presumption
oflegitimacy); McKenzie v. Harris, 679 F.2d 8, 11 (3d Cir. 1982) (under Pennsylvania law,
"overwhelming" evidence needed to rebut presumption of legitimacy); see also H. Clark,
supra note 33, at 188 & n.l5 (courts recognizing as scientifically reliable HLA testing to show
paternity); infra note 228 (definition of"parent").
rin
After adoption, the child takes the domicile of his adoptive parents. E. ScoLES & P.
HAY, supra note 20, at 202.
39. See supra notes 6 & 18 and accompanying text. The Nevada bill states that
preconceptual judicial approval is required if one of the intended parents or the surrogate is
a resident of the state; it does not state that such proceedings are unavailable to nonresidents.
The permissive alternative of the Uniform Status of Children of Assisted Conception Act
authorizes such proceedings if the surrogate or one intended parent is a resident. UNIF. STATUS
ep
OF CHILDREN OF AssiSTED CONCEPTION ACT§ 6 98 U.L.A. 94 (Supp 1990) (Alternative A).

The New York proposal's venue provision assumes one party will be a resident ("When the
surrogate mother is not a resident of the state, then the petition shall be filed in the county
where the intended parents reside."). Residence and domicile are not necessarily equivalent.
The latter requires the intent to remain. E. ScoLES & P . HAY, supra note 20, at 170-73.
40. See RESTATEMENT (SECOND) OF CONFLICT OF LAws§ 15 (1971); E. SCOLES &
Pr
ed
Despite the elusive and elastic quality of any domicile require-

ment, then, adoption (like divorce) is not a transitory action or pro-
iew
ceeding.41 Put in different terms, adoption proceedings cannot be filed
in any jurisdiction in which the parties happen to be present; a more
substantial and enduring local connection, domicile, must exist to em-
power a court of the state to issue an adoption decree. As a result,
evasion of the restrictive state's surrogacy laws should require more
than simply crossing state lines for an adoption decree and payment,
rev
assuming other states continue to observe the domicile requirement of
adoption jurisdiction.
Finally, the Uniform Child Custody Jurisdiction Act (UCCJA)42
and the Parental Kidnapping Prevention Act (PKPA), 43 both enacted
to reduce competition among the various state courts that might be
asked to decide child custody controversies, reinforce the assumption
that transient presence is insufficient for adoption jurisdiction. To the
extent that these statutes apply to adoption proceedings as well as to
er
custody litigation, an issue on which state courts have split, 44 they
would place primary jurisdiction in the child's "home state," defined
as "the state in which the child immediately preceding the time in-
volved lived with his parents, a parent, or a person acting as parent,
pe
for at least six consecutive months, and in the case of a child less than
six months old the state in which the child lived from birth with any
of the persons mentioned. " 45
Despite the strong support for these conclusions, they could prove
P. HAY, supra note 20, at 179. Although this scenario hypothesizes a single domicile for the
adoptive couple, each spouse may have his own domicile, despite traditional rules to the
ot
contrary. See RESTATEMENT (SECOND) OP CONFLICT OP LAws§ 21 & comments a-d (1971
& Supp. 1988).
41. Cf. Alton v. Alton, 207 F.2d 667, 673 (3d Cir. 1953) ("Can divorce be turned
into a simple, transitory action at the will of any legislature?''), vacated as moot, 347 U.S.
610 (1954); Garfield, The Transitory Divorce Action: Jurisdiction in the No-Fault Era, 58
tn
TEX. L. REv. 501, 535 (1980) (simple residence or brief presence ought to suffice for divorce
jurisdiction, but new problems-including choice oflaw-would then require attention). Sim-
ilarly, criminal actions are not transitory. See Leflar, Conflict of Laws: Choice of Law in
Criminal Cases, 25 CASE W. REs. L. REv. 44, 48 (1974); see also infra notes 197-210 (dis-
cussing extraterritorial application of criminal laws).
42. UNIP. CHILD CusTODY JuRISDICTION ACT, 9 U.L.A. pt. I, at 123 (1988).
rin
43. 28 U.S.C. § 1738A (1988).

44. Compare, e.g., Gainey v. Olivo, 258 Ga. 640, 373 S.E.2d 4 (1988) (UCCJA
applies to adoption proceedings); In reAdoption ofB.E.W.G. and S.L.W.G., 379 Pa. Super.
264, 549 A.2d 1286 (1988) (reaching holding consistent with UCCJA in adoption proceeding
during pendency of custody action in another state); In re B.B.R., 566 A.2d 1032 (D.C. App.
1989) (applying PKPA to adoption proceedings) with, e.g., In re Johnson, 415 N.E.2d 108
(Ind. Ct. App. 1981) (UCCJA does not apply to adoption proceedings); Williams v. Knott,
rep
690 S. W.2d 605 (Tex. Ct. App. 1985) (actions for termination of parental rights and adoption
are not custody proceedings within PKPA). See H. CLARK, supra note 33, at 873-74 (arguing
that these statutes should control in adoption as well as custody cases).
An extended analysis of these statutes appears infra notes 241-308 and accompanying
text.
45. See infra notes 255 & 292 and accompanying text.
d
we
untrue in two different sets of circumstances causing a sister state to
entertain adoption proceedings involving parties from the restrictive
state who had entered a surrogacy arrangement in the restrictive state.
First, though truly domiciled in the restrictive state, either the
surrogate or one of the adoptive parents might purport to establish a
ie
domicile in the adoption forum. 46 Just as in the era of prevalent mi-
gratory divorce, when individuals traveled to a less restrictive state and
appeared to establish a home-only to leave once the divorce they
ev
sought had been granted47-so here a party from the restrictive state
might appear to become domiciled elsewhere, at least until completing
the adoption process. Although adoption proceedings may require more
time to complete than divorce proceedings, depending upon the law
of particular state, 48 the wealthy wife of a semen-provider, especially
rr
one who does not work outside the home, might well be ready, willing
and able to spend as long as six months or a year away from her true
home, in order to consummate an out-of-state adoption. If her husband
can join her, he would strengthen the appearance that the couple had
changed domiciles to the adoption forum. Alternatively, the couple's
e
agreement with the surrogate might include the surrogate's temporary
relocation in the adoption forum until the completion of the proceed-
pe
ings. Under either set of circumstances, the adoption forum might con-
clude that it has jurisdiction based on domicile when, in fact, the dom-
icile of all parties remains in the restrictive state, to which everyone
intends to return after the adoption.
Second, despite the prevailing rule to the contrary, a sister state
might decide to entertain an adoption proceeding involving parties
whom the court frankly recognizes as domiciliaries of the restrictive
ot
state. 49 Indeed, foreign countries adhering to the "civil law" system use
this approach, "usually open[ing] their adoption courts to all comers. " 50
46. An infertile couple seeking a child through surrogacy informed me that the
tn
broker whom they consulted had advised the wife to do just that, in order to facilitate the
hoped-for adoption. Statement of" Brenda" to Seminar in Reproductive Control, Washington
University School of Law, St. Louis, Mo. (April 10, 1989).
47. See generally M. RHEINSTEIN, MAiuuAOE STABILITY, DIVORCE, AND THE LAw
81 (1972).
48. See, e.g., UNIP. ADOPTION ACT§ 12, 9 U.L.A. pt. I, at 52 (1988) (a minor, other
rin
than the petitioner's stepchild, must have lived in the adoptive home for six months after
agency placement or six months must have elapsed since informing the court of the minor's
custody with the adoption petitioner before a final adoption decree will be issued); H. CLARK,
supra note 33, at 906 (timing of proceedings depends on state law); see id. at 872-73 (time
for court to judge environment in adoptive home).
49. See In reAdoption of a Child by D.F.H. and M.L.P., 230 N.J. Super. 445, 553
A.2d 866 (App. Div. 1989) (New Jersey has jurisdiction to decree adoption for nonresident
ep
petitioners if child placed by state-approved agency); H. CLARK, supra note 33, at 871-72
("Jurisdiction [for adoption) has also been based upon the child's presence in the state by
some courts"). Cf. Stein v. Foster, 557 So. 2d 861, 861 n.1 (Fla. 1990) (Florida adoption
proceedings in surrogacy case involving Michigan parties and Michigan documents).
50. E. ScoLES & P. HAY, supra note 20, at 544.
Pr
ed
If a sister state does so, however, then the question of choice of law
iew
ought to become pertinent.
Of course, adoption has ordinarily proceeded in the same manner
as divorce litigation, with the domicile of at least one of the parties
performing "double duty" to meet both the constitutional requirement
for jurisdiction and that for choice oflawY Yet, if a state decides to
treat adoption as a transitory action, that is, to open its adoption courts
to parties based solely on their transient presence and in the absence
rev
of any domiciliary connection, then it ought to consider the issue of
choice of law. Further, although adoption may be the parties' ultimate
goal, surrogacy cases may present other, though closely related, issues
for a court to decide-for example, the validity or enforceability of
various contractual terms. If not subsumed by the larger question
whether the court will grant the adoption, these related issues should
prompt choice-of-law analysis. Indeed, by themselves, these related
er
issues may raise matters that can and must be resolved in personam,
without the need for jurisdiction based on domicile. 52
In any other transitory proceeding similarly related to the restric-
tive state, virtually every choice-of-law approach, traditional or mod-
pe
em, would apply the restrictive state's law to all substantive issues. 53
Indeed, the due process and full faith and credit clauses probably com-
pel application of the restrictive state's law on such facts. 54 And when
51. Cf. Williams v. North Carolina, 317 U.S. 287 (1942) (domicile of one spouse
may grant, under its own law, ex parte divorce entitled to full faith and credit). Although
the conventional wisdom has portrayed domicile as a constitutional requirement for divorce
ot
jurisdiction, see, e.g., Sherrer v. Sherrer, 334 U.S. 343, 349 (1948), modem analyses argue
otherwise while emphasizing the choice-of-law issues raised by use of alternative jurisdictional
bases. Alton v. Alton, 207 F.2d 667, 678 (3d Cir. 1953) (Hastie, J., dissenting), vacated as
moot, 347 U.S. 610 (1954); Garfield, supra note 41, at 535-39. Adoption jurisdiction lends
itself to parallel arguments.
tn
52. Adjudications of the contractual claims, as distinguished from adjudications of

status, require in personam jurisdiction. Compare Kulko v. Superior Court, 436 U.S. 84
(1978) with Shaffer v. Heitner, 433 U.S. 186, 208 n.30 (1977). The usual bases of in personam
jurisdiction include presence, consent, domicile and nationality as well as those specified in
the forum's "long-arm" statute. E.g., Burnham v. Superior Court, 110 S. Ct. 2105 (1990);
see E. ScoLES & P. HAY, supra note 20, at 256-319. All such assertions of jurisdiction must
rin
satisfy the due process clause, which imposes requirements of fairness and reasonableness;
recent cases, moreover, emphasize the necessity of the defendant's purposeful availment of
the benefits of the forum, if she is not present there. See, e.g., Asahi Metal Industry Co. v.
Superior Court, 480 U.S. 102, 112-13 (1987) (plurality opinion); Burger King Corp. v. Rud-
zewicz, 471 U.S. 462, 476 (1985); Kulka, 436 U.S. at 94.
53. The one debatable exception could be Leflar's choice-influencing considerations,
under which the forum's search for the "better law" almost always leads to application of
rep
the forum's own law. See infra note 114 and accompanying text.
54. See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) (striking down
under due process and full faith and credit clauses choice of law of forum state with no
connection to the claims); see also Home Ins. Co. v. Dick, 281 U.S. 397 (1930) (due process
clause prevents application of law of forum with no reasonable connection).
ed
courts in "civil law" countries invoke such expansive adoption juris-
iew
diction, they apply not their own law but the "personal" law of the
adopter or the childss_in this case the restrictive state's law. The same
result should follow here as well, regardless of the choice-of-law meth-
odology used by the adoption forum. s6 Although adoption laws
throughout the United States converge in their focus on the interests
of the adoptive child, s1 a fact that might minimize the importance of
choice of law in interstate adoptions, the prospect of wide variations
ev
among the states with respect to surrogacy and surrogacy-related adop-
tions requires rethinking such notions. To summarize and repeat, what-
ever the adoption forum's approach to choice of law, the restrictive
state's law should apply to all substantive issues before the adoption
court, including whether to decree the adoption and whether to hold
rr
the terms of the contract enforceable, for example.
But suppose, despite all of this authority to the contrary, a sister
state issues, based on the transient presence or consent to jurisdiction
by the parties, a decree in accord with its own surrogacy-favoring law
ee
for the adoption of a child from the restrictive state by a couple from
the restrictive state who has so contracted. Indeed, though no state has
sought to do so yet, a state-aspiring to become a surrogacy "mill" that
attracts participants nationwide (or even worldwide) might plausibly
depart from prevailing adoption rules and limitations on choice oflaw
tp
to take just such action. One of three consequences might then follow
in the restrictive state: (1) full faith and credit principles may require
the restrictive state to recognize the out-of-state adoption; (2) alter-
natively, if applicable, the "jurisdictional exception" to the full faith
no
and credit requirement might allow this state to refuse to recognize the
adoption; or (3) completely apart from full faith and credit, the adoption
may endure because no subsequent proceedings attacking it ever occur
in the restrictive state.
( 1) The arguments for required recognition of the out-of-state

t
adoption
rin
First, in a subsequent proceeding in a court of the restrictive state

in which a question arises about the validity of the out-of-state adop-
55. E. ScoLBS & P. HAY, supra note 20, at 545.

ep
56. As a result, this scenario does not present the need to examine particular choice-
of-law theories, which receive considerable attention in the later hypotheticals.
57. See H. CLARK, supra note 33, at 909; E. Scous & P. HAY, supra note 20, at
542-43.
Pr
ed
tion, full faith and credit principles might require the court to recognize
the adoption despite the lack of jurisdiction in the court granting the
iew
decree. These principles, derived from article IV of the United States
Constitution, compel a state (the restrictive state) to accord the same
finality to a judgment or decree as it would have in the state that
rendered it (the adoption forum). 58
True, these principles allow a state to attack a sister state's judg-
ment or decree rendered without jurisdiction-that is, decided by a
rev
court that lacked the power to adjudicate the matter before it. None-
theless, the bilateral migratory divorce cases significantly limit the
availability of this exception. In these cases, 59 a spouse left home, pur-
ported to establish a new domicile in a state with a less restrictive
divorce law, and obtained a divorce in a proceeding in that state in
which the other spouse entered an appearance and had the opportunity
to litigate the divorce court's jurisdiction. Subsequent events, partic-
ularly the divorce petitioner's return to her initial home just after com-
er
pletion of the proceedings, cast significant doubt on whether the req-
uisite domiciliary connection had ever obtained in the divorce forum.
Yet because both husband and wife were before the divorce court and
had the opportunity to litigate the jurisdictional issue (hence the term
pe
"bilateral" divorce), the United States Supreme Court held the juris-
diction of the divorce forum-while still theoretically required to be
based on domicile-was immune from attack elsewhere. The Court's
conclusion followed even though in hindsight domicile in the divorce
forum proved questionable or, indeed, nonexistent. 60
By analogy, then, the appearance before a court issuing an adoption
ot
decree of all parties-the child, 61 the surrogate, her husband (if she is
married), the semen-provider and his wife (the adoptive couple)-might
58. See supra note 19 and accompanying text. See also H. CLARK, supra note 33,
tn
at 869 ("In a few cases the Full Faith and Credit Clause has been held to require interstate
recognition of adoption decrees").
59. E.g., Sherrer v. Sherrer, 334 U.S. 343 (1948); Johnson v. Muelberger, 340 U.S.
581 (1951).
60. Muelberger, 340 U.S. at 582 ("undisputed facts" show failure to comply with
jurisdictional requirement).
61. Must the child be represented separately from the other parties in order to have
rin
"appeared" before the court within the terms of this rule? Probably not. The Uniform Adop-
tion Act does not provide for counsel for the child, UNIF. ADOPTION AcT, 9 U.L.A. pt. I, at
15-78 (1988), and courts have split on whether counsel must be appointed for an indigent
child in a proceeding to terminate the rights of her natural parents. See H. CLARK, supra
note 33, at 866. In the related area of child custody, the child is not considered a party,
although statutes give the "courts discretion to provide independent counsel or a guardian
rep
ad litem where the child's welfare makes it desirable." /d. at 795. As a result, existing authority
affords no firm ground for concluding that the child must always have counsel in surrogacy-
based adoption cases for the adjudication to preclude collateral attack. See Muelberger, 340
U.S. at 581 (child who did not appear cannot collaterally attack bilateral migmtory divorce).
d
we
preclude collateral attack upon the adoption in the restrictive state,
even if the adoption forum's lack of jurisdiction is conceded in hind-
sight. The divorce analogy provides a perfect parallel when one of the
parties, the surrogate or one of the adoptive parents, has claimed a
domicile in the adoption forum and post-adoption activities indicate
ie
that she never really intended to establish a home outside the restrictive
state. The divorce analogy, though somewhat weaker, may control even
when all the parties frankly concede domiciles in the restrictive state
and the sister-state court simply assumes adoption jurisdiction despite
ev
the prevailing rule to the contrary.
In sum, under these cases the restrictive state could not question
or attack an out-of-state adoption in which all parties to the surrogacy
arrangement participated in the proceeding. Whatever the restrictive
state's concern for the child and its opposition to surrogacy, it could
rr
not look behind the final adoption decree issued by a court of a sister
state. 62 If a surrogate who experienced a change of heart could not
reopen the matter in the adoption forum, then full faith and credit
would preclude a court in the restrictive state from allowing her to do
e
so. 63 Nor would the adoption forum's hypothesized efforts to become
a "surrogacy mill" allow for a different result, given the precedents
about sister-state "divorce mills. " 64
pe
(2) The mostly weaker arguments against required recognition of the
out-of-state adoption
First, if the adoption forum in this fact pattern were a foreign
country, not a sister state, mandatory recognition in the restrictive state
ot
But see UNJF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT§ 6(a), 98 U.L.A. 94
(Supp. 1990) (Alternative A) (court shall appoint guardian to represent interests of child to
be conceived).
62. Even if the adoption forum unconstitutionally applied its own law, this result
would follow. See supra note 19 (summarizing cases making this point). Note that, as a matter
tn
of procedure, adoptions in many jurisdictions result in both the issuance of a new birth
certificate naming as "parents" the adoptive parents in place of the biological parents and
the sealing of the court records to insure secrecy. See H. CLARK, supra note 33, at 931-34.
The Nevada proposal for preconceptual judicial approval of surrogacy arrangements, see
supra note 18 and accompanying text, contains a similar provision. See also UNIF. STATUS
OF CHILDREN OF ASSISTED CONCEPTION ACT§ 6(d), 98 U.L.A. 95 (Supp. 1990) (Alternative
rin
A).
63. See supra note 19 and accompanying text (full faith and credit requires same
respect for judgment or decree as rendering state accords). Because under the Nevada pro-
posal, see supra note 18, the surrogate could terminate the agreement following judicial
approval within 180 days after insemination, she should have the same leeway to do so in
sister states. See also UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT§ 6(b) &
comment, 98 U.L.A. 96-97 (Supp. 1990) (Alternative A).
ep
64. For example, in Coe v. Coe, 334 U.S. 378 (1948), a resident of Massachusetts
whose divorce petition was dismissed at home obtained a decree in Nevada in a bilateral
proceeding. The Supreme Court disallowed collateral attack on the decree in Massachusetts
under full faith and credit, even though Nevada was a notorious divorce mill. SeeM. RHEIN-
STEIN, supra note 47, at 76.
Pr
ed
would not follow. Though the restrictive state would remain free to
recognize the foreign adoption under principles of comity, no full faith
iew
and credit requirement would compel it to do so. 65 As a result, the
restrictive state could ignore or question the validity of the foreign-
country adoption just as many courts in the United States refuse to
recognize foreign-country bilateral divorces. The same conclusion
should follow for resolution by foreign courts of any related contractual
claims, unless these proceedings produce a judgment covered by a spe-
cial law, such as the convention between the United States and the
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United Kingdom requiring respect for binding money judgments. 66
Second, despite the lessons of the bilateral divorce cases, courts
of the restrictive state may not always be required to recognize even
sister-state adoptions based solely on transient presence. In migratory
"ex parte" divorces, distinguished from the "bilaterals" because the
second spouse was not within the divorce court's personal jurisdiction,
the Supreme Court allowed a subsequent proceeding in another state
attacking the divorce court's authority, based on post-divorce events
er
demonstrating absence of the mental element of domicile, the divorce
petitioner's intent to establish a home, in the forum state. 67 Though
still sound authority, these ex parte cases may provide a less apt analogy
for surrogacy cases in which all parties appear before the adoption court
pe
than do the bilateral divorce cases, in which the appearance of both
parties before the divorce court precluded questioning in another state
the first court's jurisdiction. On the other hand, these ex parte cases
may prove to be precisely on point in situations in which the adoption
forum grants the decree in a proceeding in which the surrogate has not
entered an appearance-a highly unlikely eventuality given the strict
ot
standards and constitutional protections required for terminations of

65. See supra note 20 and accompanying text. Compare, e.g., Rosenstiel v. Rosen-
stiel, 16 N.Y.2d 64, 209 N.E.2d 709,262 N.Y.S.2d 86 (1965) (New York chooses to recognize
bilateral Mexican divorce) with, e.g., Warrender v. Warrender, 79 N.J. Super. 114, 118, 190
tn
A.2d 684, 686 (App. Div. 1963), ajj'd without opinion, 42 N.J. 287, 200 A.2d 123 (1964)
(New Jersey chooses to void Mexican divorce); Kugler v. Haitian Tours, Inc., 120 N.J. Super.
260, 293 A.2d 706 (Ch. Div. 1972) (sale of travel package, including "quickie" Haitian divorce,
enjoined as fraud because such divorces are worthless in New Jersey). To the extent that
American courts accord less respect to the decisions of foreign courts than to those of sister-
state courts, they demonstrate that federalism, not finality, best explains the full faith and
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credit requirement. In other words, the policy that "there be an end oflitigation," see Baldwin
v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 525 (1931), ought not to distinguish
between American judicial proceedings and those in foreign countries. If American courts
can reopen final foreign judgments or decrees more easily than final American judgments or
decrees, then federalism-the unification of separate sovereign states into a single nation, see,
e.g., Allstate Ins. Co. v. Hague, 449 U.S. 302, 322 (1981) (Stevens, J., concurring)--provides
the persuasive explanation.
rep
66. For example, in 1977 the United States entered a convention with the United
Kingdom for recognition of judgments, mainly binding money judgments. E. SCOLBS & P.
HAY, supra note 20, at 971-72. Cf 42 U.S.C.A. § 11603(g) (West Pamphlet 1990) (imple-
menting the Hague Convention on Civil Aspects of International Child Abduction).
67. See, e.g., Williams v. North Carolina, 325 U.S. 226 (1945).
ed
parental rights. 68 The surrogate could then challenge the jurisdiction

of the adoption forum, and thus the outcome of the proceeding, else-
iew
where should she want the child returned.
Third, as a general rule (even in cases in which jurisdictional ques-
tions have been fully litigated), assumptions of jurisdiction based on
errors of law may well be more susceptible to subsequent collateral
attacks than assumptions of jurisdiction based on factual errors.69 As
a result, if an adoption forum-say in a surrogacy "mill" state-issues
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a decree to parties all frankly conceding domiciles in the restrictive
state, this decree may not preclude a court in another state from ques-
tioning the adoption forum's jurisdiction.
Fourth, most questions about sister-state recognition of adoptions
have arisen well after the fact in subsequent proceedings about inher-
itance. Authorities agree that an adoption decree entered by a court of
competent jurisdiction should have the same effect as a local adoption
decree; 70 implicitly, then, an adoption from a court lacking jurisdiction
er
should have no such effect. 71 If these results are confined to inheritance
cases, they provide little help in regulating surrogacy, however, because
the specter of future inheritance problems is a far too uncertain and
remote way of exacting present compliance with limitations on sur-
pe
rogacy by which the restrictive state seeks to deter the practice from
the outset.
With respect to more immediate and substantive attacks on the
out-of-state adoption, UCCJA and PKPA (to the extent applicable to
adoption proceedings72) both reinforce the idea that transient presence
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68. See H. Cl.AilK, supra note 33, at 888-905. If the surrogate consented to the
adoption or even if she opposed it(as in In reBaby M, 109 N.J. 306,537 A.2d 1227 (1988)),
she would have entered an appearance, thus making the proceeding more analogous to the
bilateral divorce cases, which preclude subsequent collateral attack. See supra notes 59-60
and accompanying text. _
n
69. For example, a court might make an error oflaw in concluding that a state other
than the domicile of one of the parties has adoption jurisdiction; it might make a factual
error by concluding that the adoption forum is one party's domicile, even though, in fact, it
never was. Compare Fall v. Eastin, 215 U.S. I (1909) (no full faith and credit required for
decree affecting title to land issued by court outside situs state; only situs state has jurisdiction
nt
to issue such decrees) with Durfee v. Duke, 375 U.S. 106 (1963) (even though only situs state
has jurisdiction to quiet title to land, precise location of land relative to state boundary fully
litigated in first proceeding; resulting decree entitled to full faith and credit). See also RB-
STATBMBNT (SBCOND) OP CONFLICT OP LAWS§ 97 comment (d) (1971) (foreclosure of col-
lateral attack on subject-matter jurisdiction requires balancing policy underlying rules of res
ri
judicata against policy prohibiting a court from exceeding its power; factors to consider
include "whether the determination as to jurisdiction or competence depends upon questions
offact or of law").
ep
70. E.g., In re Estate of Neuwirth, 155 N.J. Super. 410, 382 A.2d 972 (Monmouth
County Ct. 1978); E. ScoLBS & P. HAY, supra note 20, at 543. See In re Estate of Hart, 165
Cal. App. 3d 392, 209 Cal. Rptr. 272 (1984).
71. See H. CLAilK, supra note 33, at 869.
72. See supra note 44 and accompanying text.
Pr
ed
does not confer adoption jurisdiction and that sister-state recognition

need not follow proceedings so based. 73 Further, although the conclu-
iew
sion that an adoption decree creating a new parent-child relationship
in the forum state must be given the same effect in all sister states rests
on sound constitutional principles, as the arguments for required rec-
ognition of the out-of-state adoption establish, 74 some authority would
allow a sister state to refuse to accord the incidents of adoption to a
relationship established by means of an out-of-state decree violative of
local public policy. 75 If valid beyond their own narrow facts, 76 these
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cases might allow a court in the restrictive state to issue orders incon-
sistent with the incidents that out-of-state adoptions would ordinarily
entail. For example, custody is ordinarily an incident of the parent-
child relationship created by adoption; 77 under these cases perhaps a
court in the restrictive state could cite this state's strong anti-surrogacy
policy to award custody to the surrogate if she seeks to have the child
returned even after the issuance of a final out-of-state adoption decree
er
in favor of the semen-provider and his wife.
Such direct attacks on an out-of-state adoption will occur only
rarely, particularly if, by hypothesis, all "parents" hoped to perform
the surrogacy agreement and participated in the adoption proceeding.
pe
Even if the adoption forum would not have held the surrogate to her
agreement by terminating her parental rights over her objection fol-
lowing a post-conception change of heart, holding her to an adoption
in which she has participated is a more attractive, and perhaps the only
73. See infra notes 241-308 and accompanying text. An extended examination of
these statutes, which clearly control in custody litigation without clearly applying to adoption
ot
proceedings, appears later in the analysis.

74. See supra notes 58-64 and accompanying text.
75. See, e.g., In re Estate of Griswold, 140 N.J. Super. 35, 41-42, 354 A.2d 717, 720
(Morris County Ct. 1976) (refusing to accord incidents to out-of-state adult adoption designed
to invoke third party's testamentary trust in frustration of testator's intent); REsTATEMENT
tn
(SECOND) OF CoNFLICT OF LAws§ 290 comment (c) (1971) (state may refuse to allow in-
heritance as incident of out-of-state adult adoption or out-of-state adoption undertaken solely
for inheritance or emigration purposes, if contrary to strong local public policy); E. ScoLES
& P. HAY, supra note 20, at 543-44 n.l.
76. Though the sources cited supra note 75 might suggest a principle that would
allow the restrictive state to deny the incidents of adoption to an out-of-state surrogacy-based
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adoption, these sources are arguably distinguishable; they involve or cite out-of-state adop-
tions deemed fraudulent or inconsistent with the basic purposes of adoption law-in other
words, not "real" adoptions at all. In addition, federal policy underlying full faith and credit,
as exemplified in cases like Hughes v. Fetter, 341 U.S. 609 (1951), substantially limits the
extent to which a state can treat out-of-state decrees differently from its own. See E. ScoLES
& P. HAY, supra note 20, at 543-44 n.l. See also Estin v. Estin, 334 U.S. 541, 552 (1948)
(Frankfurter, J., dissenting) (state cannot treat out-of-state ex parte divorces differently from
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its own ex parte divorces).

77. The Supreme Court has held, under the full faith and credit clause, that valid
ex parte divorces change the marital status of the couple throughout the sister states without,
however, affecting the incidents of that status, such as support rights and duties. See Estin
v. Estin, 334 U .S. 541 (1948); Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957).
ed
plausible, approach consistent with concerns for finality and stability

for the child. 78
iew
Indeed, one can find a number of adoption cases in which, free
from all full faith and credit constraints, a second state has given effect
to a placement tainted by the black market or otherwise flawed in the
first jurisdiction. For example, in a case cited by the New Jersey Su-
preme Court in Baby M, the appellate division reversed a decision by
the trial court that had refused to grant an adoption to a couple who
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had received a child through an illegal placement. 79 The appellate di-
vision determined that the best interests of the child favored the adop-
tion, that the removal of the child from the only home he had known
for over a year would cause him trauma and harm, that the natural
mother was not seeking return of the child, and that the state should
not disrupt the life of the child as a means of penalizing the adoptive
parents, without a clear legislative mandate. 80 After all, in the absence
of child abuse or similar danger, any other result would prove disastrous
er
for the child-whose welfare undoubtedly lies at the center of whatever
protective legislation the restrictive state might seek to enforce.
pe
(3) The likely irrelevance of required recognition of the out-of-state
adoption
Finally, a third and ultimately most troublesome consequence for

the restrictive state might follow from an out-of-state adoption based
either on feigned out-of-state domicile or frankly transient presence:
ot
The adoption may be "good enough" to survive in the restrictive state

in the absence of any subsequent judicial proceeding.
"Quickie" divorces from foreign countries, though not recognized
as valid in most of the United States, often adequately satisfy the needs
tn
of the parties so long as neither spouse nor any third party questions
78. The equitable principle of estoppel would also support this conclusion. It pre-
cludes an individual from subsequently questioning a result that he cooperated in obtaining.
Courts have frequently applied it in the divorce context to bar a spouse who obtained an
invalid decree in another jurisdiction from later seeking to set aside the decree. See H. CLARK,
rin
supra note 33, at 434-43; cf., e.g., Clagett v. King, 308 A.2d 245 (D.C. 1973); Scherer v.
Scherer, 405 N.E.2d 40 (Ind. App. 1980); Kazin v. Kazin, 81 N.J. 85, 405 A.2d 360 (1979)
(divorce cases).
79. In reAdoption of a Child by I.T. and K.T., 164 N.J. Super. 476, 397 A.2d 341
(App. Div. 1978). See In reAdoption of a Child by N.P. and F.P., 165 N.J. Super. 591, 398
A.2d 937 (Law Div. 1979). Baby M cites both cases. In re Baby M, 109 N.J. 396, 455, 537
ep
A.2d 1227, 1257 (1988).

80. In reAdoption of a Child by I.T. and K. T., 164 N.J. Super. at 486-90, 397 A.2d
at 345-47. See also Hartfield, supra note 32, at 318-24 (showing how, in majority of cases,
courts will grant adoptions despite violations of the Interstate Compact on the Placement of
Children).
Pr
ed
the decree in an American court. 81 By analogy, a surrogacy arrangement

centered in the restrictive state concluded by an adoption elsewhere,
iew
even in a forum (whether sister state or foreign country) lacking the
usual jurisdictional prerequisites, might give the parties what they
want-a document "good enough" to allow the adoptive couple to rear
the child absent later litigation. Given the dearth of cases in which
surrogates have changed their minds (particularly after an adoption
decree), the restrictive state cannot count on surrogates to initiate such
later litigation. So, unless the restrictive state is committed to rooting
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out and prosecuting violators of its anti-surrogacy laws82 (as North
Carolina responded to a small-town scandal by prosecuting the re-
married parties in Williams v. North Carolina 83 ) and unless such pros-
ecutions permit collateral attack of the adoption court's jurisdiction-
a less than certain outcome, as the analysis above shows, particularly
for sister-state proceedings in which all parties participate-then "good
enough" may well mean "unassailable." er
All three lines of argument examined above hinge on the willing-
ness of another jurisdiction to become an "adoption mill" for tran-
siently present out-of-state parties to surrogacy arrangements. If a state
seeks such business, for either economic or ideological reasons, the
pe
problem presented for the restrictive state will be both real and difficult
to overcome despite a transparent manipulation of contacts. 84
On the other hand, nothing in the United States Constitution com-
pels a state to entertain adoption proceedings involving parties dom-
iciled elsewhere. Despite the command of the privileges and immunities
clause of article IV prohibiting states from practicing unreasonable dis-
ot
crimination against out-of-staters, 85 both the analogy to divorce

81. See, e.g., Kulko v. Superior Court, 436 U.S. 84 (1978) (in a successful consti-
tutional challenge to California's jurisdiction to issue child-support order, the Supreme Court
tn
noted, without comment, that the couple's marriage was dissolved by means of an ex parte
Haitian divorce obtained by the wife). The equitable principle of estoppel will produce a
similar conclusion even if one of the participating parties seeks to challenge the decree later.
See supra note 78.
82. Query what difficulties officials of the restrictive state might confront in ob-
taining the information necessary to prosecute such cases, given the laws of many states
sealing adoption records? See supra note 62.
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83. 317 U.S. 287 (1942), 325 U.S. 226 (1945); seeM. RHEINSTEIN, supra note 47,
at 66-71; Powell, And Repent at Leisure: An Inquiry into the Unhappy Lot of Those Whom
Nevada Hath Joined Together and North Carolina Hath Put Asunder, 58 H.uv. L. REv. 930
(1945).
84. No state has yet sought this role. Nonetheless, some states have laws legitimizing
surrogacy. Consider, for example, NEv. REv. STAT.§ 127.287 (5)(1987), explicitly exempting
rep
surrogacy agreements from the prohibition against payment in exchange for a natural parent's
placement or consent to adoption. The extent to which Nevada would seek to implement
this statute in multijurisdictional cases remains uncertain. See also supra notes 6 & 18 and
accompanying text (proposed legislation).
85. ••The Citizens of each State shall be entitled to all Privileges and Immunities
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jurisdiction86 and modern choice-of-law notions 87 support the reason-

ableness of a state's insistence on the domicile of one of the principal
iew
individuals as a requirement for adoption jurisdiction. Most states,
then, would refuse to entertain adoption proceedings under the cir-
cumstances outlined here. Nonetheless, parties from the restrictive state
who pretend to have acquired an out-of-state domicile may well pursue
a more promising avenue for evasion by creating a setting in which
this first hypothetical fact pattern will more often unfold.
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b. Second hypothetical
This second hypothetical differs from the first only in that the
parties from the restrictive state have taken additional steps to establish
connections with a more hospitable jurisdiction. In other words, they
have undertaken a more serious, though no less manipulative, effort
to create a multijurisdictional surrogacy arrangement. By hypothesis,
er
they have traveled to a more hospitable state or country to execute the
surrogacy agreement, which contains an explicit choice of law clause
reciting that this jurisdiction's law will control, 88 and they will perform
the agreement there by participating in the artificial insemination, ex-
pe
changing the child for the payment, and appearing in an adoption pro-
ceeding in this state. Perhaps one of them has also purported to establish
a domicile in this sister state or foreign country without having in fact
of Citizens in the several States." U.S. CoNST. art. IV,§ 2 [1). See Supreme Court ofVa. v.
Friedman, 487 U.S. 59 (1988); Currie & Schreter, Unconstitutional Discrimination in the
Conflict of Laws: Privileges and Immunities, in SELECTED EssAYS ON CoNFLICT OF LAws,
ot
supra note 3, at 445.

86. See H. CLAR.K, supra note 33, at 871 (noting "obvious analogy to divorce").
87. Modem choice-of-law theories such as Brainerd Currie's interest analysis, ex-
amined more fully infra at notes I 02-05 and accompanying text, place considerable emphasis
on domicile as a connecting factor. See B. CuRRIE, supra note 3; cf. Ely, Choice of Law and
tn
the State's Interest in Protecting its Own, 23 WM. & MARY L. REv. 173 (1981) (questioning
constitutionality of interest analysis' focus on a state's own citizens).
88. Such stipulations often contain very general references to a given jurisdiction's
law. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 481 (1985) ("This Agreement
. .. shall be governed and construed under and in accordance with the laws of the State of
Florida"). Given the difficulty in characterizing surrogacy as a matter of contract or adoption
law, see infra notes 99-100 and accompanying text, careful legal advice would probably result
rin
in a more specific choice-of-law clause, detailing a reference to a particular body of the

designated jurisdiction's law. Otherwise, the clause could frustrate the parties' intent if, for
example, the designated state permits commercial surrogacy while continuing to prohibit
black market adoptions. Cf. NEV. REv. STAT. § 127.287(5) (1987) (exempting surrogacy
agreements from ban on commercial placements). Note that proposed legislation in Nevada
providing for preconceptual judicial approval of surrogacy arrangements, see supra note 18
ep
and accompanying text, requires all parties to "have agreed that the law of this state governs
all matters arising under this chapter and the agreement." Alternative A of the Uniform
Status of Children of Assisted Conception Act contains virtually identical language. See UNIF.
STATUS OF CHILDREN OF AsSISTED CONCEPTION ACT§ 6 (b)(l), 9B U.L.A. 94 (Supp 1990)
(Alternative A). See supra note 6.
Pr
ed
HYPOTHETICAL 2
iew
PARTIES FROM RESTRICTIVE STATE ENTER OUT-OF-STATE
SURROGACY ARRANGEMENT CONCLUDED BY OUT-OF-
STATE ADOPTION AND PAYMENT

rev
domicile of surrogate execution of agreement
contractual stipulation that
this jurisdiction's law will
control
domicile of adoptive couple birth of child
payment
child relinquished for adoption
adoption proceedings
er
satisfied the requirements for abandoning· her home in the restrictive
state and acquiring a new one elsewhere. 89
pe
Because the restrictive state in fact remains the domicile of all the
parties in this scenario, the same jurisdictional problems canvassed in
the first hypothetical persist here for the out-of-state adoption 90 (though
not for all related issues that the case might raise, such as claims on
the contract91 ). Similarly, the considerations explored earlier would
dictate both the outcome of a subsequent collateral attack on the adop-
tion forum's jurisdiction-that is, its power to issue the adoption de-
ot
cree-and the effect of the adoption decree in the restrictive state. 92

The merits of this case will differ significantly from those in the
first hypothetical only if this sister state or foreign country purports to
tn
,consider adoption a transitory proceeding and then squarely confronts

the choice-of-law question, 93 as courts in civil law countries do. 94 In
addition, choice oflaw will surely become an issue should matters other

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90. See supra notes 36-50 and accompanying text. According to the Kansas Attorney
General, the Interstate Compact on the Placement of Children, see supra note 33 and ac-
companying text, does not apply to cases in which a pregnant woman travels from her domicile
to another state to give birth and relinquish the child there-precisely the facts of this second
hypothetical. 88-174 Op. Att'y. Gen. Kan. (1988), IS Fam. L. Rep. (BNA) 1243 (Mar. 21,
1989). But see Hartfield, supra note 32, at 306.
91. The activities undertaken by each of the parties, including any intermediaries,
rep
in the more hospitable state, would satisfy the "minimum-contacts" test as applied to any
appropriately drawn long-arm statute. See supra note 52 and accompanying text.
94. See supra note SS and accompanying text.
ed
than the adoption itself require resolution in the adoption forum, such
as the enforceability of terms of the agreement in the event any of the
iew
parties fails to comply with them. If and when choice-of-law analysis
materializes here on any matter before the adoption forum, then the
additional connections with this more hospitable state, not present in
the first hypothetical, 95 establish a foundation for this court to apply
its own law, consistent both with the Constitution96 and with a number
of choice-of-law methodologies. 97 Thus, this second scenario moves
rev
beyond the threshold jurisdictional questions that dominated the anal-
ysis of the first hypothetical to examine the choice-of-law issues that
the parties might plausibly raise, given the additional connections with
the adoption forum postulated here. 98
Suppose first that the more hospitable jurisdiction, the adoption
forum, is one of the restrictive state's forty-nine sister states, the District
of Columbia, or a territory with similar legal status for purposes of
conflicts analysis, such as the Virgin Islands or Puerto Rico. The choice-
er
of-law process, its outcome and its response to the parties' evasionary
efforts would all depend upon which of several available approaches
the courts of this jurisdiction follow.
If, for example, the adoption forum uses the traditional approach
pe
to choice of law embodied in the Restatement of Conflict of Laws (her-
einafter First Restatement), 99 it might decide that the agreement by the
parties predominates over all other features of surrogacy and conse-
quently characterize this case as a "contracts case." So characterized,
the case is controlled by the "lex loci contractus"-the place of execution
or possibly the place of performance of the contract. Assuming the
ot
adoption forum to which the parties traveled from the restrictive state
for precisely this purpose honors such agreements, even if the restrictive
state does not, the adoption forum would apply its own law to validate
tn
95. If one party, though truly a domiciliary of the restrictive state, persuades the
adoption forum that he has established a new home there, then the adoption forum's analysis
of the choice-of-law issues would proceed along the lines developed under the third and
fourth hypotheticals, below. See infra notes 136-85 and accompanying text.
97. The question what law ought to govern a case connected with more than one
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state, particularly when the connected states have different laws pertinent to the case, has
produced a confusing array of answers. As a result, American courts do not all decide choice-
of-law questions the same way. Influenced by an enormous body of legal scholarship, they
may follow any one of a wide variety of different approaches, each with its own distinct
theoretical underpinnings, rules for application, and responses to efforts by the parties to
manipulate contacts in order to insure choice of a particular state's law.
ep

99. See RESTATEMENT OF CONFLICT OF LAws (1934). A more succinct review of
this theory and its methodology, along with illustrative cases, appears in R. CRAMTON, D.
CuRRIE & H. KAY, supra note 31, at 1-135. This excellent general authority obviates the
need for specific citations on each particular point that follows.
Pr
ed
and enforce the bargain. Likewise, if the surrogate experiences second

thoughts before the completion of the proceedings, the forum in the
iew
more permissive state will look to its own substantive law, not that of
the restrictive state, in resolving the resulting disagreement. If the adop-
tion forum's law dictates an adoption even over the surrogate's objec-
tion, it will terminate her rights and issue the decree.
This analysis does not preclude other possibilities, however. The
adoption forum, consistent with the traditional approach, may believe
that the family-law aspects of surrogacy overwhelm the contractual
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characteristics. Indeed, the difficulties reflected in the Baby M opinions,
in determining whether contract law or adoption law provides the ap-
propriate analytic framework, 100 presage the flexibility a court may
have in characterizing surrogacy cases for choice-of-law purposes. Un-
der a ..family-law" label, traditional theory applies the law of the parties'
domicile-in this case, by hypothesis, still the restrictive state. The
application of the restrictive state's law to all substantive issues is par-
er
ticularly likely to occur if the adoption forum, unconsciously driven
by interest analysis, 101 seeks only to make surrogacy arrangements
available to its own domiciliaries without becoming a .. mill" for out-
of-staters eager to avoid their local restrictions.
pe
Alternatively, the adoption forum might adhere to one of the mod-
ern approaches to choice of law, such as interest analysis, the Restate-
ment (Second) of Conflict of Laws (hereinafter Second Restatement),
Leflar's choice-influencing considerations, or Cavers' principles of pref-
erence. Under interest analysis, as developed by Brainerd Currie,I 02
the adoption forum would presumptively apply its own law to all issues
and would consider other choices, such as the law of the restrictive
ot
state, only once asked to do so. Such requests might seem an implau-
sible eventuality, given the parties' assumed eagerness to have forum
law control, unless a state social services agency in the forum, which
participates in all adoption proceedings in this jurisdiction, 103 were to
tn
request application ofthe restrictive state's law. The likelihood of such

agency participation or requests for the restrictive state's law would
100. Compare In re Baby M, 217 N.J. Super. 313, 525 A.2d 1128 (Ch. Div. 1987)
(enforcing contract) with In re Baby M, 109 N.J. 396,537 A.2d 1227 (1988)(invokingadoption
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laws to invalidate contract). .

101. See infra notes 102-05 and accompanying text. See also supra note 55 and
accompanying text (adoptions in civil law countries).
102. See B. CURRIE, supra note 3; B. CURRIE, Notes on Methods and Objectives in
the Conflict of Laws, in SELECTED EssAYS ON CONFLICT OF LA.WS, supra note 3, at 177. A
useful summary of this theory and its application by the courts appears in Kay, Theory into
Practice: Choice of Law in the Courts, 34 MERCER L. REv. 521, 538-52 (1983).
rep
103. See H. CLARK, supra note 33, at 906 ("the laws of some states require agency
investigations and reports in all adoption cases including private placements"). A similar
investigation is required prior to the issuance of a preconceptual adoption decree by both
the proposed legislation in Nevada, see supra note 18, and by Alternative A (section 6) of
the Uniform Status of Children of Assisted Conception Act. See supra note 6.
ed
depend upon the precise reasons underlying the adoption forum's hos-
iew
pitality toward surrogacy: Does it seek to make the practice available
only for its own domiciliaries or does it seek to become a "mill" for
all who appear in its courts? Further, ifthe surrogate changes her mind
about fulfilling her promises at any time before the conclusion of the
proceedings in the adoption forum, then she might ask the court to
choose the law of the restrictive state.
Upon a request to apply the law of the restrictive state, an adoption
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forum following interest analysis would first try to ascertain the policies
underlying both its own rule and the restrictive state's rule and then
try to determine which of these policies would be advanced by appli-
cation to each particular issue in the case. When only one state's policy
could be advanced, interest analysis directs the forum to choose that
state's law. Here (assuming the adoption forum does not seek to become
a "mill" for out-of-staters), the restrictive state's limitations on sur-
rogacy, presumably enacted at the very least to protect local surrogates
er
and their infants from exploitation (and perhaps to protect the adoptive
parents from the dangers of dishonored bargains, as in Baby M), would
control. Likewise, if the restrictive state aims to deter all surrogacy
agreements involving its domiciliaries (regardless of where those agree-
pe
ments take place), then this state's law would control under interest
analysis. This conclusion follows in either case because the restrictive
state alone has a policy to be advanced on these facts (a "false con-
flict"). 104 Ifbroader societal concerns also underlie the restrictive state's
rules-the notion that surrogacy wherever performed and regardless of
the domicile of the participants undermines core social values-then
ot
such policies enhance the restrictive state's "interests" in having its

law apply to this case.
But if the adoption forum seeks to honor all agreements made
within its borders or if it seeks by its laissez-faire approach to become
tn
a "mill" that attracts surrogacy arrangements involving out-of-staters,

then it too would have an "interest" in applying its own law rather
than that of the restrictive state to these facts. 105 In this event, the
104. A state's interests often focus on providing particular opportunities for or pro-
rin
tecting its own domiciliaries. See B. CURRIE, supra note 3. In the absence of other interests,
the adoption forum has no policy to advance on the facts of this hypothetical because all
parties to the adoption remain domiciled in the restrictive state.
I 05. Courts purporting to apply interest analysis have relied upon such governmental
policies. See, e.g., Hernandez v. Burger, 102 Cal. App.3d 795, 802, 162 Cal. Rptr. 564, 568
(1980) (attributing to Mexico, which limits damages for wrongful death, an interest in in-
creasing the tourist trade through this means); see also Wyatt v. Fulrath, 16 N.Y.2d 169, 211
ep
N.E.2d 637, 264 N. Y.S.2d 233 ( 1965) (suggesting that New York courts apply New York law
to cash and securities deposited in accounts there, in derogation of laws of depositors' dom-
icile, in order to attract more such deposits to New York). But cf. Broderick v. Rosner, 294
U.S. 629, 644 (1935) (New Jersey cannot rely on policy designed to allow local residents to
escape their obligations in order to close its courts to out-of-state claims).
Pr
ed
forum would confront a "true conflict" to which interest analysis would

have the forum apply its own law, in this case, its surrogacy-favoring
iew
law.
Under the Second Restatement's "most significant relationship"
approach, 106 a modem theory that many states profess to follow, the
outcome is uncertain. First, according to this approach, the hypothe-
sized contractual choice-of-law stipulation, in which the parties' own
agreement specifies that the more hospitable state's law controls, pre-
sumptively dictates that the law of the chosen state ought to apply. 107
rev
Yet the Second Restatement goes on to say that such stipulations by
the parties will not govern an issue the parties are not competent to
resolve if the law they have selected contravenes a fundamental policy
of the state with the most significant relationship to the issue in ques-
tion. 108 Protective restrictions on contractual freedom, a description
that may encompass a surrogacy restriction designed to protect indi-
viduals from entering unwise or immoral agreements, ought not to be
er
suspended by the parties' own stipulation; otherwise the parties could
"bootstrap" themselves into precisely the position the law seeks to
disallow 109-here, entering an unwise or immoral agreement. Further,
the restrictive state's anti-surrogacy policy may well be fundamental,
pe
particularly if statutory language says that it is so.
Nonetheless, the Second Restatement affords courts in the adop-
tion forum ample opportunity to conclude that the permissive state
has the most significant relationship with respect to the particular issue
in controversy and that its law, rather than that of the restrictive state,
ought to control. To illustrate, the adoption forum might reach this
ot
conclusion after emphasizing the contractual features of the case and

thus attaching predominant weight to its own surrogacy-favoring pol-
icies, to the protection of justified expectations, to the basic policies
underlying contract law, and to the certainty and predictability of re-
tn
sult-all general principles guiding the choice of law under the Second
Restatement's approach. 110 Such factors might well have the adoption
forum grant the decree even over the surrogate's objection, depending
106. See RESTATEMENT (SECOND) OP CONFLICT OP LAws (1971). See Kay, supra
note 102, at 552-62, for a more concise summary of this approach and its judicial application.
rin
107. REsTATEMENT (SECOND) OP CONFLICT OP LAws§ 187 (1971).

108. /d.
109. See E. Gerli &Co. v. Cunard S.S. Co., 48 F.2d liS, 117 (2d Cir. 193l)(L. Hand,
J.); Siegelman v. Cunard White Star Ltd., 221 F.2d 189, 201 (2d Cir. 1955) (Frank, J., dis-
senting).
110. RESTATEMENT (SECOND) OP CONFLICT OP LAws§ 6 (1971). In addition, the
rep
more hospitable state may consider the policy behind its laws to be fundamental. Cf. In re
Marriage of Adams, 133 Ill. 2d 437, 551 N.E.2d 635 (1990) (Florida has most significant
relationship to dispute about parentage of child conceived by artificial insemination there
and born there while parents resided there because parties would expect Florida law to
control).
ed
upon the resolution this state would reach in purely local disputes of
iew
this kind.
Though theoretically distinct from the final version of the Second
Restatement, the center-of-gravity or grouping-of-contacts approach
helped shape earlier notions of the most-significant-relationship test. 111
Under this approach, a qualitative assessment of each state's contacts
reveals the state "most intimately concerned with the outcome" of the
particular case. 112 The unpredictability of this approach leaves as much
rev
room here for the adoption forum to apply its own law to all substantive
issues as for it to apply the law of the restrictive state. 113
If the adoption forum were to decide choice-of-law questions ac-
cording to Leflar's choice-influencing considerations, 114 the forum's as-
sessment of which law reflects the superior social policy (the "better"
law) would become the primary inquiry, in addition to the kinds of
considerations noted above. With the wide-ranging discretion offered
by this approach, a forum will usually apply its own law as the alter-
er
native that best advances its interest in deciding cases as a "justice-
administering state." In other words, given the reasonable likelihood
that the forum will find its own law "better" or more "just" than the
rules followed in other states, under this approach the adoption forum's
pe
own law will probably govern each substantive aspect of the case.
By contrast, Cavers' principles of preference 115 would probably
prompt the adoption forum to apply to this case the restrictive state's
limitations on surrogacy. Under Cavers' sixth principle, the court would
ask whether the restrictive state had enacted its laws to protect its
domiciliaries (likely so, at least in part) and whether the contacts that
ot
apparently center the particular surrogacy arrangement in the forum

state " had been manipulated to evade [the restrictive state's] protective
law" 116 (undoubtedly so). The predicted affirmative responses to these
questions would lead a state that follows Cavers' principles to apply
n
law of the restrictive state here.
Ill. See Kay, supra note 102, at 527.

112. Auten v. Auten, 308 N.Y. ISS, 161, 124 N.E.2d 99, 102 (1954); see Kay, supra
nt
note 102, at 525-38 (summarizing and evaluating theory).

113. Compare Auten v. Auten, 308 N.Y. ISS, 124 N.E.2d 99 (1954) with Haag v.
Barnes, 9 N.Y.2d 554, 175 N.E.2d 441,216 N.Y.S.2d 65 (1961).
114. See Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L.
REv. 267 (1966); Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 CALIF.
ri
L. REV. 1584 (1966). See also Kay, supra note 102, at 562-72 (summary of theory and judicial
application).
115. See D. CAVERS, supra note 31. Though the Pennsylvania Supreme Court has
ep
relied on this approach, Cipolla v. Shaposka, 439 Pa. 563, 567 n.3, 267 A.2d 854, 856 n.3
( 1970), it does not now enjoy a judicial following. Judicial allegiances to choice-of-law theories
remain sufficiently fickle to warrant a brief discussion of this approach anyhow; someday
another court may decide to adopt it.
116. D. CAVERS, supra note 31 , at 181.
Pr
ed
Finally, a court following a lex fori (law of the forum) approach

would apply its own law, rather than that of the restrictive state, once
iew
it determined that it had enough contacts to justify this result. 117
Though the courts have not clearly identified the threshold for this
test-how many contacts are enough? 118-the adoption forum's contacts
in this case appear adequate.
To summarize, if the permissive state were to assume jurisdiction
to issue an adoption decree while all parties remained domiciled in the
restrictive state, the permissive state might proceed to apply its own
rev
law to the case (and issue the adoption decree or hold the contract
enforceable even when the surrogate changes her mind) if it follows
the approach to choice of law described by the First Restatement, 119
the Second Restatement, 120 the center of gravity, 121 Leflar's choice-
influencing considerations, 122 or the lex fori. 123 On the other hand, this
state might choose the restrictive state's limitations (and refuse to issue
the adoption decree) under a slightly different application of both the
er
First Restatement and the Second Restatement, under interest analy-
sis, 124 or under Cavers' principles of preference. 125 In the former sets
117. See Kay, supra note 102, at 579-81.
118. See id.
pe
119. Kay, supra note 102, at 591-92,lists the following 22 jurisdictions as adherents
of the traditional approach of the First Restatement: Alabama, Alaska (in part), Connecticut,
Delaware, District of Columbia, Georgia, Indiana (in part), Kansas, Maryland, Montana (no
modern cases found), Nebraska, Nevada (with some recognition of modern theory), New
Mexico, North Carolina, Ohio (in part), South Carolina, South Dakota, Tennessee, Utah,
Virginia, West Virginia and Wyoming. Subsequent research indicates that courts in Alaska,
Connecticut, Montana and Ohio have defected to the Second Restatement. R. CRAMTON, D.
CuRRIE & H. KAY, supra note 31, at 306-07.
ot
120. In addition to the recent converts, Alaska, Connecticut, Montana and Ohio, see
supra note 119, courts in the following 14 states use the Second Restatement: Arizona, Col-
orado, Florida, Idaho, Illinois, Iowa, Maine, Mississippi, Missouri, Oklahoma, Oregon, Texas,
Vermont (according to a federal court's opinion) and Washington. Kay, supra note 102, at
591-92. SeeR. CRAMTON, D. CURRIE & H. KAY, supra note 31, at 306-07.
tn
121. New York and North Dakota have used this approach, see Kay, supra note 102,
at 591-92, though some New York opinions refer to interest analysis, without necessarily
using it properly. See, e.g., Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 480 N.E.2d
679, 491 N.Y.S.2d 90 (1985).
122. Minnesota, New Hampshire and Wisconsin have followed this approach. Kay,
supra note 102, at 591-92. Arkansas uses it in conjunction with the Second Restatement, id.
rin
at 573, while Rhode Island combines it with the Second Restatement and interest analysis,
id. at 577-78.
123. Courts in Kentucky and Michigan have used this approach. See id. at 591-92.
124. California and New Jersey emp)oy interest analysis. Id. Hawaii combines interest
analysis with Leflar's choice-influencing considerations, id. at 573, while Louisiana uses in-
terest analysis only for "false conflicts," id. at 574-75.
Massachusetts, which has abandoned the traditional approach, has not clearly declared
rep
its current allegiance; recent opinions contain threads of interest analysis as well as the Second
Restatement. See id. at 575-76 n.345.
125. See supra note 115. Kay, supra note 102, at 576-77, states that Pennsylvania
combines this approach with the center-of-gravity approach, interest analysis, and the Second
Restatement.
ed
of circumstances, then, the adoption forum's judicial action would de-

feat the restrictive state's regulatory efforts. 126
iew
And once the court issues the adoption decree, the same rules of
finality and full faith and credit examined under the first hypothetical
materialize here as well. 127 Because the policies underlying these rules
insulate judicial decrees once rendered from re-examination on the
merits, 128 at this post-decree stage of the inquiry, the treatment of the
first and second hypotheticals would be indistinguishable. 129
rev
The preceding analysis has focused on choice-of-law theories fol-
lowed by American courts-theories that such courts would use whether
the other jurisdiction connected with the case were another American
state or a foreign country. 130 Outside the United States, courts in civil
126. Finally, suppose that the surrogacy arrangement hypothesized in this case spans
not just two jurisdictions but three or more. Assuming the forum has jurisdiction, the analysis
outlined would control in large part whenever the connections attributed to the restrictive
state here are distributed among any number of jurisdictions with similar limitations and
er
the activities attributed to the more hospitable jurisdiction are distributed among several
states or countries with such surrogacy-favoring rules. The primary change, if any, would
emerge in choice-of-law analysis based on Currie's interest analysis or any other modem
theories incorporating this basic approach. Because such approaches seek to determine
whether each particular jurisdiction's policies would be advanced by application to a partic-
pe
ular set of facts, distributing, say, the contacts attributed to the restrictive state among several
anti-surrogacy jurisdictions could make a difference. If one restrictive state has articulated
legislative policies aimed only at protecting the surrogate but the surrogate is domiciled in
another restrictive state, for example, then the first state would "lose" that particular interest
in this variation. If the first state also has articulated policies centered on the adoptive couple,
however, such policies would continue to give this state an interest so long as the couple
retains their domiciles there.
127. See supra notes S8-87 and accompanying text.
ot
128. See, e.g., Fauntleroy v. Lum, 210 U.S. 230 (1908) (despite Mississippi's strong
policy objection to enforcing a final judgment rendered in Missouri and despite a possibly
mistaken choice of law by the Missouri court, the full faith and credit clause precludes
Mississippi from looking behind the sister-state judgment at the merits of the case).
If the adoption forum could reopen the proceeding, as for example, the Nevada proposal
tn
and Alternative A ofthe Uniform Status of Children of Assisted Conception Act both allow
until 180 days after the last insemination, see supra note 18, then a court in the restrictive
state could do the same (but only for the same period of time). See supra note 19 and
accompanying text.
129. Nor could a court in the restrictive state look behind the decree to determine
whether it was based on a voluntary relinquishment of the child or an involuntary termination
of the surrogate's parental rights, unless a court in the adoption forum could also do the
rin
same. Though some authority exists for the restrictive state to invoke its fundamental anti-
surrogacy policy to refuse to accord the usual incidents to such out-of-state adoptions, the
stronger view requires the restrictive state to place such adoptions on a par with its own
domestic adoptions. See supra notes 7S-77 and accompanying text.
130. See, e.g., Neumeier v. Kuehner, 31 N.Y.2d 121, 286 N.E.2d 4S4, 33S N.Y.S.2d
64 (1972) (New York and Ontario, Canada); Wyatt v. Fulrath, 16 N.Y.2d 169, 211 N.E.2d
ep
637, 264 N.Y.S.2d 233 (196S) (New York and Spain); Auten v. Auten, 308 N.Y. ISS, 124
N.E.2d 99 (19S4) (New York and England); In re Schneider's Estate, 198 Misc. 1017, 96
N.Y.S.2d 6S2 (N.Y. Sur. Ct. 19SO (New York and Switzerland), adhered to on reargument,
100 N.Y.S.2d 371 (19SO). But cj, e.g., Walton v. Arabian American Oil Co., 233 F.2d S41,
S4S (19S6) (lex loci [a traditional choice-of-law rule] does not apply when a tort is committed
Pr
ed
law countries, while using a more expansive basis of adoption juris-

diction, apply the "personal" law of the adopter or the child 131 -here,
iew
the restrictive state's law. Further, although our constitutional rules do
not bind courts in foreign countries 132 and although the choice-of-law
process outside the United States began with very different premises
from those upon which we have built our theories, modem scholars
have concluded that, at least in Europe, the choice-of-law process in-
creasingly resembles our own. 133
rev
Yet whether a court in a foreign country would look to its own
law or that of the restrictive state in adoption proceedings, the foreign
court-at worst (from the restrictive state's point ofview)-might issue
a foreign adoption decree. In the absence of an applicable treaty or
agreement with this nation, general principles of comity would allow
the restrictive state to respect or to ignore such foreign decrees and any
judgments resolving related issues. 134 Thus, as in the first hypothetical,
a foreign adoption, if granted, presents a much less significant threat
er
to the restrictive state's efforts to limit surrogacy than an adoption
decree or related judgment from a sister state. Yet, again as in the first
hypothetical, such decrees may provide a "good enough" basis for the
pe
desired parent-child relationship in the absence of subsequent pro-
ceedings in the restrictive s~te. 135
c. Third hypothetical
Though only one contact, the surrogate's domicile, distinguishes

ot
the third hypothetical from the immediately preceding scenario, this

case probably depicts the far more likely response by those attempting
to evade the restrictive state's laws, whether the more hospitable ju-
tn
in an "uncivilized country").
Of course, a treaty specifying the applicable law would constrain the choices of Amer-
ican courts in such cases. See E. ScoLES & P. HAY, supra note 20, at 148-57.
131. E. ScoLES & P. HAY, supra note 20, at 545.
132. Cf. supra note 54 and accompanying text (constitutional constraints).
133. See, e.g., E. ScOLES & P. HAY, supra note 20, at 46-48.
rin
134. E.g., Doulgeris v. Bambacus, 203 Va. 670, 127 S.E.2d 145 (1962) (refusing to
recognize Greek adoption not based on "best-interests" test). But see supra note 66 and
accompanying text (convention with United Kingdom entitles binding money judgments to
respect in United States).
Indeed, outside the surrogacy context, Americans seeking to adopt children from foreign
countries often participate in adoption proceedings first abroad and then again at home in
rep
order to ensure the validity of the decree everywhere. This practice suggests real doubt about
the validity of some foreign-country adoptions at least in parts of the United States. Cf. H.
CLARK, supra note 33, at 853. But see UNIF. ADOPTION ACT §17, 9 U.L.A. pt. I, at 69 (1988)
(states will recognize foreign decrees consistent with due process).
d
we
HYPOTHETICAL 3
COUPLE FROM RESTRICTIVE STATE EXECUTES OUT-OF-

STATE CONTRACT WITH OUT-OF-STATE SURROGATE
CONCLUDED BY OUT-OF-STATE ADOPTION
ie
ev
domicile of adoptive couple domicile of surrogate
execution of agreement
control
rr
birth of child
payment
child relinquished for adoption
e adoption proceedings
risdiction actively seeks to become a surrogacy "mill" or simply decides

that a more permissive regulatory scheme makes good sense as a matter
of policy. Two reasons support this conclusion. First, domiciliaries of
pe
the restrictive state eager to acquire a child through surrogacy would
most probably consult a broker situated in a more hospitable state who,
in tum, would arrange for them to deal with a surrogate domiciled
there or in an equally hospitable state. Second, the bona fide domicile
of the surrogate in a permissive state will substantially enhance the
likelihood that courts there will have adoption jurisdiction and will
ot
apply their own surrogacy-favoring laws to any litigation there. As a

result, this scenario promises the greatest chance for successful evasion
by adoptive couples from the restrictive state and thus the most sig-
nificant threat to its efforts to limit surrogacy. This section discusses
tn
more fully the reasons for these predictions and presents an especially
thorough analysis of this most important scenario, beginning with cases
confined to the United States and then turning to international cases
fitting this pattern.
In the two earlier hypotheticals, at least in multi state cases confined
rin
to this country, absent feigning an out-of-state domicile, the parties

could evade the restrictive state's law only if the sister state assumed
adoption jurisdiction despite the total absence of domiciliary connec-
tions- an unlikely event given the prevailing American view that adop-
tion jurisdiction rests on domicile. 136 By contrast, in this third hypo-
thetical, if the permissive state is the true domicile of the surrogate and
ep
hence that of her child, this state undoubtedly would have jurisdiction
to terminate the mother's parental rights and to decree an adoption of
the child, with her consent or otherwise. Even if the UCCJA and the
Pr
ed
PKPA apply not only to custody proceedings but also to adoptions, 137
the jurisdictional requirements spelled out in these statutes would usu-
iew
ally be satisfied: One key jurisdictional basis under both statutes, the
child's "home state," would likely attach in the more hospitable state. 138
With adoption jurisdiction (as well as in personam jurisdiction over
the surrogate) thus secured in the forum, 139 under the full-faith-and-
credit command the forum state's decree becomes impenetrable in any
subsequent proceedings in the restrictive state, whether initiated by the
state itself or by a remorseful surrogate. In short, the one avenue of
rev
collateral attack that might have remained available in the first two
scenarios (lack ofjurisdiction in the rendering state) evaporates here. 140
A fortiori, in the absence of subsequent proceedings in the restrictive
state-because all parties remain content with the outcome obtained in
the adoption forum-the out-of-state decree provides an effective way
to escape the constraints enacted by the restrictive state. 141
Finally, the additional connections with the more hospitable ju-
er
risdiction substantially increase the opportunities for the adoption
forum to apply its own law, rather than that of the restrictive state,
whether the litigation there unfolds as a consensual adoption proceed-
ing or a dispute in which the adoptive couple seeks adoption through
enforcement of the contract against a surrogate who wishes to repudiate
pe
the agreement. Given these connections, the adoption forum, which
we will assume for purposes of analysis would enforce the contract and
decree the adoption in all purely local cases of this type, would have
ample basis under the due process and full faith and credit clauses to
apply its own law to this multijurisdictionallitigation. 142
ot
137. Courts have divided on this question. See supra note 44 and accompanying
text.
138. See infra notes 255 & 292 and accompanying text. The child's "home state" is
not the same as his domicile. The home state must be a place where the child has lived, but
the child's domicile, which derives from that of the parents, may be a place where the child
tn
has never been present. See Mississippi Band of Choctaw Indians v. Holyfield, 109 S. Ct.
1597, 1608 (1989).
139. See supra notes 36 & 52 and accompanying text.
140. See, e.g., Bonwich v. Bonwich, 699 P.2d 760 (Utah), cert. denied, 474 U.S. 848
(1985); H. CLARK, supra note 33, at 869; E. ScoLES & P. HAY, supra note 20, at 543-44 &
n.l.
In addition, the surrogate's domicile in the forum gives that court in personam juris-
rin
diction over her as well, see supra note 52, precluding her from claiming the proceeding was
"ex parte." See supra notes 67-68 and accompanying text.
142. The surrogate's domicile, plus the other connections with the forum, would
easily satisfy the constitutional requirements. E.g., Allstate Ins. Co. v. Hague, 449 U.S. 302,
312-13 (1981) (plurality opinion) ("for a State's substantive law to be selected in a consti-
rep
tutionally permissible manner [under the due process and full faith and credit clauses], that
State must have a significant contact or significant aggregation of contacts, creating state
interests, such that choice of its law is neither arbitrary nor fundamentally unfair"); Pacific
Employers Ins. Co. v. Industrial Ace. Comm'n, 306 U.S. 493 (1939) (full faith and credit
clause does not prevent a state with an interest in applying its own law from doing so even
if a sister state also has an interest in having its own, different law applied). See supra note
54 and accompanying text.
ed
Beyond this constitutional threshold, many choice-of-law theories

currently used by American courts would direct the application of the
iew
forum's own law to this multijurisdictional case. More specifically, if
the adoption forum follows the rules of the First Restatement, 143 as the
domicile of mother and infant and the place of the agreement, it will
have the required connections for applying its own law, whether it
characterizes surrogacy cases as family-law cases or as contract-law
cases. The addition of a domiciliary contact also enhances the likeli-
rev
hood that the forum will apply its own law under the most-significant-
relationship test of Second Restatement. 144 This conclusion follows be-
cause the forum will now clearly be the "center of gravity" 145 and
because the forum's laissez-faire attitude toward local surrogates, to-
gether with the general policy favoring enforcement of consensual trans-
actions, may well outweigh the restrictive state's anti-surrogacy objec-
tives with respect to virtually every issue that the court might
adjudicate.
er
This clash of values will emerge more clearly and will yield a
similar conclusion if the forum uses Currie's governmental interest
analysis. 146 Currie's process begins by identifying the policies under-
lying the laws of each state and determining whether these policies
pe
would be advanced by the application of the law in question to each
particular issue before the court. Although the second hypothetical (in-
volving only domiciliaries of the restrictive state) probably presents a
"false conflict" in which only the restrictive state's policies are at stake,
relocating the domicile of the surrogate and infant to the more hos-
pitable jurisdiction probably creates a "true conflict, •• a case in which
ot
each state may have objectives to further.

A true conflict exists because, while the adoption forum may have
an interest in validating consensual transactions entered by its residents
and affirming the freedom of its women to become commercial sur-
n
rogates if they so choose, the restrictive state remains interested in

protecting its residents from the hazards of surrogacy and in deterring
them from participating in such deals. Specific policies of the restrictive
state furthered by the application of its anti-surrogacy law to this case
nt
might include: (1) avoiding the difficulties that the child (a future dom-
iciliary of the restrictive state) will experience as she grows up separated
from her natural mother and becomes aware that she is the product of
a commercial agreement; (2) protecting the contracting couple (dom-
ri
iciliaries of the restrictive state) from participating in such morally

questionable ventures and from confronting the painful consequences
ep

Pr
ed
that might result, such as a dishonored bargain or the uninvited med-
iew
dling of the surrogate in later years; and (3) deterring couples from the
restrictive state from turning to surrogacy as a solution to infertility or
as a method of escaping the burdens of pregnancy.
To the extent that the restrictive state's law reflects broader societal
concerns, those that can be connected in any way to the adoptive couple
from this state would be implicated here. For example, despite the
surrogate's domicile elsewhere, the restrictive state's interest in pre-
rev
venting the "commodification" 147 of women might be at stake in this
case because the residents of the restrictive state who hire an out-of-
state surrogate foster the attitude that the restrictive state seeks to pre-
vent. A more moderate and restrained interpretation of either the adop-
tion forum's objective or that of the restrictive state is not immediately
apparent, 148 so the "true conflict" of interests persists.
As originally formulated by Currie, interest analysis would have
er
the forum dispose of such real clashes between governmental objectives
by applying its own law; Currie insisted that this "give-it-up" approach
was compelled by both judicial incompetence in weighing the conflict-
ing policies of different jurisdictions and by the recognition that, after
pe
all, the forum court is an arm of the state which should not subordinate
or second-guess its own domestic policies in favor of the choices made
by other jurisdictions. 149 Implemented in the third hypothetical, then,
pure interest analysis would resolve the case through application of the
adoption forum's own surrogacy-favoring law.
Variations on interest analysis would not so readily dispose of a
ot
true conflict with the application of the forum's own law. For example,
the "comparative impairment" approach, 150 which some courts later
engrafted onto interest analysis, seeks to apply the law of the jurisdic-
tion whose objectives would suffer the greater impairment from non-
tn
application to the particular case. Courts in California, 151 once explic-

itly adherents of pure interest analysis, and those of Missouri, 152 which
147. Shultz, supra note 13, at 334-37.

148. Under Currie's theory, a forum facing a true conflict should try to reconsider
rin
each state's interest, attempting to use restraint and moderation to narrow one state's or the
other's interest to eliminate the conflict. B. CuRRIB, supra note 3, at 118; B. CuRRIB, supra
note 102, at 186; Currie, The Disinterested Third State, 28 LAw & CONTBMP. PRoBs. 754,
757 (1963); see People v. One 1953 Ford Victoria, 48 Cal. 2d 595, 311 P.2d 480 (1957);
Bernkrant v. Fowler, 55 Cal. 2d 588, 360 P.2d 906, 12 Cal. Rptr. 266 (1961).
149. See B. CuRRIB, supra note 3, at 118-19; B. CuRRIB, supra note 102, at 184.
150. See Baxter, Choice of Law and the Federal System, 16 STAN. L. RBv. 1, 18-19
rep
(1963).
151. See, e.g., Bernhard v. Harrah's Club, 16 Cal. 3d 313, 546 P.2d 719, 128 Cal.
Rptr. 215 (1976); Offshore Rental Co. v. Continental Oil Co., 22 Cal. 2d 157, 583 P.2d 721,
148 Cal. Rptr. 867 (1978).
152. Hicks v. Graves Truck Lines, 707 S.W.2d 439, 442-45 (Mo. Ct. App. 1986).
ed
profess to follow the Second Restatement, have recently invoked this

effort to minimize the damage that conflicts cases might bring to various
iew
governmental policy choices. Applied to the third hypothetical, com-
parative-impairment analysis would note that failure to apply the re-
strictive state's law would substantially defeat this state's anti-surrogacy
objectives by teaching that successful evasion simply requires locating
a surrogate in another jurisdiction and centering the transaction there.
By contrast, failure to apply the adoption forum's more permissive
rules to a case such as this one involving a couple from the restrictive
rev
state would not greatly impair the adoption forum's policies because
its surrogates would remain free to transact business with local couples
(or couples from states other than the restrictive state). Only if the
adoption forum seeks unabashedly to become a surrogacy mill for cou-
ples domiciled in more restrictive states or countries would the im-
pairment of the forum's policies approach the impairment of the re-
strictive state's policies to yield a different result. In that event,
comparative impairment could not "resolve" this "true conflict." But,
er
in the absence of efforts to become a surrogacy "mill," an adoption
forum committed to comparative impairment should apply the restric-
tive state's laws because they face the greater jeopardy from nonap-
plication.
pe
The additional foreign contacts that distinguish the third hypo-
thetical from the second would not substantially alter the inquiry sug-
gested by Leflar's choice-influencing considerations. 153 Although relo-
cation of the surrogate's domicile gives the adoption forum additional
reasons to apply its own surrogacy-favoring law, as explained above,
still the decisive variables will remain the forum's determination ofthe
ot
"better law" and its concept of a "justice-administering state." The

forum will undoubtedly look to its own surrogacy-favoring rules to meet
these tests.
If the adoption forum uses Cavers' principles of preference, 154 it
tn
would probably apply the law of the restrictive state to the third hy-
pothetical as it did when it confronted the second. Because the restric-
tive state's protective objectives persist here and because the adoptive
couple purposely evaded the law of their home state by seeking an out-
of-state surrogate and by centering the arrangement outside the restric-
rin
tive state, Cavers would have the restrictive state's laws govern. And
under a lex fori approach to choice oflaw, Iss the adoption forum would
undoubtedly find its contacts sufficient to warrant the application of
its own surrogacy-favoring law.
In sum, when analyzing this third hypothetical as it might unfold
when an adoptive couple from the restrictive state establishes these
ep

154. See supra notes 11 5-16 and accompanying text.
Pr
d
we
connections with another state in the United States, the adoption forum
would probably apply its own law under the First Restatement, the
Second Restatement, the center of gravity (to the extent that it is a
distinct approach), unadorned governmental interest analysis, choice-
influencing considerations, and the lex-fori approach. As a result, a
ie
thoroughly informed couple from the restrictive state seeking to max-
imize the success of their efforts to evade local surrogacy restrictions
will select a surrogate domiciled in a state that allows surrogacy and
rev
resolves choice-of-law questions according to one of these approaches.
Virtually every state follows one of these approaches, so on the second
criterion the adoptive couple would have a wide range of options. 156
Then, by centering the transaction in any such state (by executing the
agreement there; performing the insemination there; and arranging for
the birth, the transfer of custody, payment and the adoption proceed-
ings to occur there), the couple from the restrictive state will have
virtually eliminated the risk that their own state's limitations, without
r
more, might upset their plans to adopt the resulting child and to rear
ee
him as their own. One can reach this conclusion with considerably
more certainty here than in the first two hypotheticals because in this
case, unlike the others, the adoption forum's jurisdiction (based on the
surrogate's and hence the child's domicile) 157 comports with traditional
rules and is unimpeachable under full faith and credit principles. 158
p
156. See supra notes 119-24 for a list of these states.

157. A prenatal or preconceptual decree tantamount to an adoption could upset this
assumption by assigning the adoptive couple's domicile (here, the restrictive state) to the
child. See supra notes 6 & 18 and accompanying text (proposed "uniform," Nevada and New
ot
York legislation). On the other hand, for example, if Nevada were the forum, the Nevada
bill would appear to control on the merits here because, by its own terms, it applies to all
cases in which one party is a Nevada resident. See supra note 39. See also UNIP. STATUS OP
CHILDREN OF AsSISTED CONCEPTION ACT§ 6, 98 U.L.A. 94 (Supp. 1990) (Alternative A)
(intended parents and surrogate may seek decree "if one of them is a resident of this State").
tn
158. The involvement of a third jurisdiction (or a fourth and so on) in this scenario
would add some wrinkles to the analysis but would not require any major revision of the
conclusions, so long as the basic pattern exemplified by this hypothetical persists. To the
extent, however, that under Currie's interest analysis (or other modem theories relying on a
similar methodology) particular state policies trigger "interests" only when a case has a very
specific connection to a jurisdiction, see supra notes 102-0S and accompanying text, then
distributing the connections among several jurisdictions could alter the tally of "interested
rin
states."
For example, if the surrogate is domiciled not in the adoption forum but in a third
state that also takes a permissive approach to surrogacy, a large part of the choice-of-law
analysis might remain unchanged. But if the adoption forum's surrogacy-favoring law rests
solely on a goal of increasing employment opportunities for its own domiciliaries, the forum
would no longer have an "interest" to advance by applying its law to this case. Alternatively,
rep
if the adoption forum seeks to promote business for its local brokers, then the adoption forum
remains "interested," despite our revision of the surrogate's domicile, so long as the broker's
affiliation with the adoption forum stays unchanged. More importantly, however, removing
the surrogate's domicile from the adoption forum destroys the firm foundation for the adop-
tion forum's jurisdiction to issue the adoption decree. See supra note 36 and accompanying
d
we
Moving the adoption forum with its more permissive laws to a
foreign country would change the analysis in the following ways: If the
foreign country follows basic civil law principles, 159 under which the
"personal law" of the adoptive couple or the child governs, 160 this
foreign court might plausibly apply either the restrictive state's law or
ie
its own. 161 Outside civil-law countries, in jurisdictions that accord sur-
rogacy-based adoptions different treatment from that received by "or-
dinary" adoptions or in any situation in which issues other than adop-
ev
tion per se must be resolved (e.g., contract validity), then the numerous
connections of this hypothetical to the foreign country will present a
strong case for the foreign adoption forum's application of its own,
more permissive law. 162 Once a foreign court adjudicates this hypo-
thetical case, considerations of comity, treaties and "good-enough" de-
rr
crees, all reviewed earlier, 163 will determine the impact in the restrictive
state of the parties' efforts to evade local law.
text. But see supra note 52 and accompanying text. As a result, this changed set of facts would
produce a decree possibly vulnerable to attack elsewhere for the same reasons examined
e
under the first two hypotheticals. For a thoroughly informed adoptive couple from the re-
strictive state seeking maximum protection for the family it wishes to form through surrogacy,
finding a surrogate domiciled in the adoption forum rather than in some other jurisdiction
will offer the more attractive solution.
pe
I 59. Such principles include an expansive rule of adoption jurisdiction for "all com-
ers." See E. ScoLES & P. HAY, supra note 20, at 544; supra note SO and accompanying text.
160. See E. ScoLES & P. HAY, supra note 20, at 545; supra note 131 and accom-
panying text.
161. The child could be held to share perhaps the personal law of the father from
the restrictive state but more probably that of the surrogate from the permissive jurisdiction.
In the absence of a preconceptual or prenatal adoption, the surrogate's domicile would more
likely control, at least until a determination of paternity. See supra notes 37-38 and accom-
ot
panying text.
162. In one of the earliest British surrogacy cases to receive publicity, an American
adoptive couple hired a British surrogate. N.Y. Times, Jan. 10, 1985, at A9, col. 6. A British
court refused to let the adoptive couple take custody of the child until finding them fit. See
London Sunday Times, July 14, 1985, at 37, col. 6. A British statute now prohibits commercial
tn
surrogacy. Surrogacy Arrangements Act, 1985, ch. 49. The law has a territorial focus, barring
the prohibited activities "in the United Kingdom." /d. See also Note, Surrogate Parenting:
What We Can Learn from our British Counterparts, 39 CASE W. REs. 217 (1988-89).
In addition, a 1965 multilateral Hague Convention on Jurisdiction, Applicable Law
and Recognition of Decrees Relating to Adoptions, which addresses adoptions by nationals
or habitual residents of a contracting country of children who are nationals or habitual
rin
residents of a different contracting country, spells out jurisdictional rules that, if satisfied,
entitle an adoption decree to recognition by contracting countries. See E. ScoLES & P. HAY,
supra note 20, at 546-47. (This Convention would be inapplicable to the first two hypotheticals
in which the adoptive parents and child share the same nationality or residence. ld. at 547.)
This Convention's jurisdictional scheme gives the "authorities" of the adoptive couple's
country or habitual residence the power to grant adoptions, consistent with the best interests
of the child. /d. If the Convention were in force in the United States (it is not), then only
ep
American courts would have jurisdiction in the third hypothetical. As a result, the scenario
described here could not result in a successful adoption if the more hospitable jurisdiction
were a foreign country following this Convention, which is currently in force only in Austria,
Switzerland and the United Kingdom. /d. at 546 n.l.
163. See supra notes 20, 81, 134-35 and accompanying text. But see supra note 66
Pr
d
we
d. Fourth hypothetical
HYPOTHETICAL 4
WOMAN FROM RESTRICTIVE STATE, EAGER TO SERVE AS

SURROGATE, CONTRACTS WITH COUPLE FROM MORE
ie
HOSPITABLE JURISDICTION IN COUPLE'S HOME STATE OR
COUNTRY AND RELINQUISHES CHILD FOR ADOPTION
PROCEEDINGS IN COUPLE'S HOME STATE OR COUNTRY
rev
domicile of surrogate domicile of adoptive couple
execution of agreement
control
birth of child
r child relinquished for adoption

payment
ee
adoption proceedings
The fourth scenario will probably occur in only a few rare sets of
circumstances. First, a woman from the restrictive state determined to
serve as a commercial surrogate despite her home state's law might
p
travel to a jurisdiction with more permissive laws to execute a contract
with a couple domiciled there and perform all the terms of the agree-
ment there, including relinquishing the child for an adoption to be
decreed there. Though a number of surrogates have disclosed both the
ot
financial and emotional reasons prompting their participation in such

enterprises, 164 I doubt that these needs are sufficiently powerful (or
sufficiently incapable of fulfillment by other means) to inspire this mul-
tijurisdictional arrangement in any significant numbers. The likelihood
tn
of such arrangements increases, however, if we assume that the out-

of-state couple has a pre-existing relationship with the woman from
the restrictive state (e.g., relative or friend), that they have chosen her
over all others to serve as a surrogate, and (in the event that the re-
strictive state bans only commercial surrogacy) that she will agree to
rin
participate only if she receives payment.

Alternatively, the described fact pattern might occur if the sur-
rogate becomes domiciled in the restrictive state at some point during
the arrangement even if she had been domiciled elsewhere before. For
rep
and accompanying text (convention with United Kingdom entitles binding money judgments
to respect in the United States).
164. See, e.g., L. ANDREWS, supra note 2; Parker, Motivation of Surrogate Mothers:
Initial Findings, 140 AM. J. PSYCHIATRY 117 (1983).
ed
example, suppose that during the pregnancy a surrogate moves to the

restrictive state from another state or marries a man from the restrictive
iew
state and assumes his domicile. 165 Or suppose that an out-of-state sur-
rogate decides during the pregnancy that she cannot relinquish the
child, so she moves to the restrictive state in order to come within the
protection of its anti-surrogacy laws. 166 Even ifthese "post-transaction"
contacts with the restrictive state ought to be ignored when analyziQg
issues arising directly under the surrogacy contract, 167 nonetheless they
rev
provide the child at birth with a domicile in the restrictive state-a
connection much more difficult to ignore in the adoption proceed-
ings.t68
Assuming that the more hospitable jurisdiction is one of the re-
strictive state's sister states, in the circumstances covered by this by-
165. See E. ScoLES & P. HAY, supra note 20, at 194-95.

166. Under the Uniform Child Custody Jurisdiction Act, a court may decline juris-
diction if the petitioner has "wrongfully taken the child from another state." See infra note
er
253 and accompanying text. Apart from the uncertain application of this statute to adoption
cases, see supra note 44, and the difficulty of applying this statute prenatally, see infra note
258 and accompanying text, would a court in the restrictive state consider a surrogate's change
of domicile for this purpose "wrongful"? Or would it follow an analogous "clean hands"
approach to deny jurisdiction on equitable grounds? Probably not, given its own state's anti-
pe
surrogacy policies. See infra text following note 268. Cf 42 U.S.C.A. § 11601 (West Pamphlet
1990) (federal legislation implementing the Hague Convention on Civil Aspects of Interna-
tional Child Abduction, applicable to "wrongful removal or retention" of children).
167. Sensitive to the unfairness to the other party, the Supreme Court has been
reluctant to allow "post-transaction" moves, particularly those prompted by forum-shopping
or domicile-shopping, to determine the choice of law. Compare, e.g., Allstate Ins. Co. v.
Hague, 449 U.S. 302, 331 ( 1981) (Stevens, J ., concurring) (post-transaction change of residence
must be discounted under due process analysis); id. at 337 (Powell, J., joined by Burger, C.J.,
ot
& Rehnquist, J., dissenting) (same), with Clay v. Sun Ins. Office, Ltd., 377 U.S. 179 (1964)
(application of new domicile's law to insurance dispute does not violate due process or full
faith and credit when insurance company knew that policyholder could move his property
at any time).
168. Query whether the out-of-state semen-provider might be able to obtain a prenatal
n
determination of parentage of the expected child, thereby arguably resolving the question of
domicile in advance and paving the way for the eventual adoption proceeding in the more
hospitable jurisdiction? Indeed, under surrogacy legislation like that proposed for Nevada,
New York and the permissive alternative (Alternative A) in the Uniform Status of Children
of Assisted Conception Act, this effect may be achieved through the required judicial approval
nt
of the surrogate parenting agreement. UNJP. STATUS OP CHILDREN OP AssiSTED CONCEPTION

Acr § 6, 9B U.L.A. 94-95 (Supp. 1990) (Alternative A). See supra notes 6 & 18 and accom-
panying text. In other recent contexts, moreover, some states have tried to apply child-
protection laws prenatally. Compare Jefferson v. Griffin Spalding County Hosp. Auth., 247
Ga. 86, 274 S.E.2d 457 (1981) (full-term fetus declared "deprived child" within juvenile
ri
court's jurisdiction, temporary custody of fetus granted to state, and pregnant woman ordered
to undergo sonogram and, if necessary, Caesarean section) with In re Steven S., 126 Cal.
App.3d 23, 178 Cal. Rptr. 525 ( 1981) (fetus cannot be dependent child within juvenile court's
ep
jurisdiction). Obviously, the serious constitutional (privacy) questions raised by the state's
interference with a woman's conduct during pregnancy evaporate when the woman actively
chooses the proceeding, as a willing surrogate might in a prenatal adoption proceeding. Yet
some have contended that a surrogate's participation is always the result of exploitation. E.g.,
G. COREA, THE MOTHER MACHINE: REPRODUCTIVE TECHNOLOGIES PROM ARTIFICIAL IN-
SEMINATION TO ARTIFICIAL WOMBS 213-49 (1985).
Pr
ed
pothetical, the sister state might justifiably assert jurisdiction to issue

the adoption decree as the domicile of the adoptive couple. 169 With
iew
respect to any separate, though related, contractual claims before the
court, the surrogate's execution and promised performance of the agree-
ment in the forum would easily satisfy the constitutional requirements
for in personam jurisdiction. 170 To the extent adoption petitions in
surrogacy cases invite a choice-of-law analysis generally ignored in or-
dinary adoption cases (that is, in adoption cases not growing out of
rev
surrogacy arrangements) or to the extent the forum must resolve other
issues (such as the validity the agreement), the possibilities for choosing
the controlling law unfold as follows:
For the same reasons canvassed earlier, the adoption forum would
choose to apply its own law if it used the First Restatement 171 and
characterized the case as one raising a question of contract law. It would
probably reach the same conclusion even if it viewed the problem as
one of family law, given the domicile of the adoptive couple.
er
Interest analysis 172 probably would yield the same result. If the
adoption forum seeks to promote surrogacy whenever chosen by its
own infertile couples and if the request to apply the restrictive state's
law can show that these limitations were enacted at the very least for
pe
the protection of the restrictive state's surrogates and their children,
then the forum would apply its own law to this "true conflict., Even
if the forum ascribes a more moderate and restrained scope to each
state's law, the forum would probably choose its own rule on surrogacy
at the expense of the restrictive state's policy. 173 This conclusion follows
because the forum state will likely narrow the restrictive state's policy
ot
and not its own, given the surrogate's purposeful evasion and the post-
adoption domicile in the forum intended for the child. Similarly, in
the situation in which the surrogate acquires a post-transaction domicile
in the restrictive state (that is, she moves to that state after executing
tn
the agreement), the forum will apply its own surrogacy-favoring law
because at the time of the agreement the parties, particularly the adop-
tive couple, could not reasonably expect the restrictive state's limita-
tions to govern. 174
rin
169. Modem approaches to adoption jurisdiction recognize this basis. See supra note
36 and accompanying text.
170. See supra note 52 (stating standards) and accompanying text.
174. See supra note 167 and accompanying text (raising due process questions about
rep
relevance of "post-transaction" state contacts unexpected by party); see also People v. One
1953 Ford Victoria, 48 Cal. 2d 595, 311 P.2d 480 (1957 (construing scope of state's interest
narrowly to avoid choice of law parties could not have reasonably anticipated); Bernkrant
v. Fowler, 55 Cal. 2d 588, 360 P.2d 906, 12 Cal. Rptr. 266 (1961) (construing scope of state's
interest narrowly to avoid choice of law parties might not have reasonably anticipated).
ed
Only if the adoption forum resorted to comparative impairment

analysis 175 to decide this "true conflict," might it choose the restrictive
iew
state's law. Forum policy favoring surrogacy will thrive in cases not
connected to the restrictive state and forum couples have ample op-
portunities to find surrogates domiciled outside the restrictive state. By
contrast, failure to apply the restrictive state's limitations might sig-
nificantly jeopardize the restrictive state's goals of protecting and de-
terring its own surrogates and conveying to the world its opposition to
rev
the "commodification" of (its 176) women. An adoption forum using
this approach could also rationalize applying its own law, however, on
the ground that the restrictive state's policies will suffer just slight im-
pairment if subordinated only in the rare circumstance in which a
surrogate from the restrictive state engages in an otherwise entirely out-
of-state transaction.
If the adoption forum instead follows the most-significant-rela-
tionship test of the Second Restatement, 177 it will probably apply its
er
own law here. Once again, the parties' own choice of forum law,
strengthened in this case by the adoptive couple's connection with the
forum, would likely determine the outcome. Under the Second Re-
statement, which gives the parties to a contract considerable autonomy
pe
in choosing the governing law, 178 in the absence of coercion of the
surrogate, the court would not allow the restrictive state's anti-surrogacy
policy, no matter how fundamental, to upset the consensual arrange-
ment, particularly on the basis of the frail link to the restrictive state
suggested by these facts.
Similarly, the single link to the restrictive state, the surrogate's
ot
domicile, contrasted with the more numerous contacts with the adop-
tion forum, would push the adoption forum to apply its own law under
the center-of-gravity approach, even though this approach purports to
rest on the weight rather than the mere number of state contacts. 179
tn
An adoption forum following Leflar's choice-influencing considerations

would also apply its own, apparently more enlightened, and hence "bet-
ter," freedom-of-contract approach. 180
Even Cavers' principles of preference 181 do not provide a prom-
ising avenue for application of the restrictive state's limitations by the
rin
adoption forum in this case. Although the relevant principle discounts

176. Most authorities read such protective policies to aim at the state's own domi-
ciliaries. See B. CURRIB supra note 3, at 85-86; supra note 87. See also supra note 147 and
accompanying text.
ep

Pr
ed
contacts manipulated to evade a protective policy, still the domicile of

the adoptive couple undermines the inference that manipulation alone
iew
achieved the connections with the more permissive state. Finally, the
adoption forum unquestionably has sufficient contacts to apply its own
law under the lex fori approach. 182
In sum, in the predictably rare sets of circumstances defining this
hypothetical, an American state serving as the adoption forum will
have a sound basis for jurisdiction (as the adoptive couple"s domicile)
rev
and will be able to apply its own, less restrictive, surrogacy rules under
most choice-of-law theories. 183 Principles of full faith and credit would
then compel the restrictive state to recognize the outcome of the adop-
tion proceedings or the forum's resolution of related issues. 184
When the more hospitable jurisdiction is a foreign country instead
of a sister state, it might well apply its own law to grant adoption.
Approaches yielding this result include the civil-law approach, under
er
which a court might apply the personal law of the adoptive couple to
produce a decree that might adequately serve the parties' needs. 185

183. Again, the basic fact pattern described here, in which the surrogate's domicile
pe
is the restrictive state's sole connection to the case, could span more than two jurisdictions.
For example, the contractual activities might occur in one permissive jurisdiction where, say,
the broker is based, while the adoptive couple is domiciled in another. Such facts could alter
the application of interest analysis and related choice-of-law theories, see supra notes 102-
05 and accompanying text, depending upon the asserted policies of each jurisdiction. For
example, if the adoption forum allows surrogacy only to promote business for its local brokers
and the parties used a broker from another permissive state, then the forum may have no
interest in applying its law to the issues before it. The most important points of the analysis
ot
remain unchanged, however: If the adoption forum is a sister state, full-faith-and-credit prin-
ciples will require the restrictive state to recognize not only the court's resolution of any
contractual issues but also any adoption decree it issues, especially if its power to do so
satisfies prevailing jurisdictional standards, as it would here if it were the adoptive couple's
domicile. See supra note 140 and accompanying text. Even if some of the criteria affording
tn
maximum protection for an out-of-state adoption do not exist, the parties may nonetheless
have acquired a decree that is "good enough" in the absence of a later proceeding in the
restrictive state. See supra notes 81-83 and accompanying text.
185. See supra notes 20, 81 & 134-35 and accompanying text. Further, the 1965
multilateral Hague Convention on adoption empowers "authorities" in the adoptive couple's
rin
jurisdiction of habitual residence or nationality to grant adoptions that, in tum, are entitled
to recognition without further formality in other contracting jurisdictions. See supra note
162. Apart from the Convention (which is now in force only in Austria, Switzerland and the
United Kingdom) or any applicable treaty with the adoption forum, however, principles of
comity would allow the restrictive state to refuse to recognize the foreign adoption. And even
if the United States were to join this Hague Convention at a future date, by its own terms
it permits a jurisdiction to deny recognition of an adoption otherwise requiring recognition
rep
if the adoption manifestly contravenes the public policy of the second jurisdiction-here, the
restrictive state. E. ScoLBS & P. HAY, supra note 20, at 547. In addition, authorities whose
jurisdiction under the Convention rests on the adopters' habitual resident "must respect any
prohibitions against adoption contained in the adopters' national law and expressly specified
in a declaration by the state of nationality at the time of acceptance of the Convention." ld.
d
we
2. DETERRENT MEASURES
Before, during or after the out-of-state adoption proceedings de-

scribed in the four hypothetical cases the restrictive state might seek
to use any applicable deterrent measures that it has put into place. Most
ie
likely, such criminal sanctions or civil remedies would aim at the ac-
tivities of the intermediary in the surrogacy arrangement, such as a
broker, 186 although they might target the conduct of other participants
ev
as well.
a. Criminal sanctions
rr
Deeply embedded notions of territorial sovereignty together with
such maxims as "[t]he courts of no country execute the penal laws of
another" 187 have effectively insulated criminal law from serious choice-
of-law analysis. 188 Accordingly, if a broker who brought together the
parties to a surrogacy arrangement acted to do so in the restrictive
e
state, any of this state's laws barring such conduct would apply, without
posing any challenge to the customary territorial understanding of crim-
pe
inal law. Just as easily, the restrictive state's laws could reach a phy-
sician or midwife participating in the arrangement in the restrictive
state. 189
When such activities occur outside the restrictive state, however,
the territorial approach would probably encourage the restrictive state
to attempt to identify a local component of such conduct to support
ot
the application of its own criminal sanction. Thus, although punishing

an out-of-state broker solely for advertising in the restrictive state
through nationally circulated publications would raise serious consti-
tutional questions under both the first amendment 190 and the com-
tn

187. See Loucks v. Standard Oil Co. of N.Y., 224 N.Y. 99, 102, 120 N.E. 198, 198
(1918) (Cardozo, J.) (quoting The Antelope, 23 U.S. 337, 344 (10 Wheat. 66, 123) (1825)).
188. Indeed, conflict-of-laws treatises do not even cover the topic "criminal law."
Leflar, supra note 41, at 44; Regan, Siamese Essays:(/) CTS Corp. v. Dynamics Corp. of
rin
American and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation,
85 MICH. L. REv. 1865, 1886 ( 1987) ("The conflicts literature ignores crimes, and the criminal
literature ignores conflicts"). See, e.g., E. ScoLES & P. HAY, supra note 20, at 1076. A few
exceptions, new and old, exist. See, e.g., L. BRILMAYER & J. MARTIN, CONFLICT OF LAWS
CASES AND MATERIALS 469-91, 785-860 (3d ed. 1990); E. STIMSON, CONFLICT OF CRIMINAL
LAws (1936).
189. Of course, the physician's or midwife's state of mind may well determine
ep
whether this participant has violated any particular surrogacy prohibition. For example, the
restrictive state might not define as criminal the conduct of an obstetrician who has no reason
to know that a patient is a hired surrogate.
190. "Congress shall make no law . .. abridging the freedom of speech, or of the
press." U.S. CONST. amend. I. This guarantee applies against the states through the fourteenth
Pr
ed
merce clause, 191 such advertising would provide a territorially appro-

priate basis for the restrictive state's use of its own penal law. And even
iew
if the broker did not satisfy all of the elements of a valid criminal
prohibition inside the restrictive state, she might still face charges there
for anticipatory or accessorial conduct. For example, she could be pros-
ecuted for "conspiracy to engage in commercial surrogacy" 192 if the
amen<l"nent. See, e.g., Near v. Minnesota, 283 U.S. 697, 707 (1931).
Commercial speech, however, has enjoyed less constitutional protection than other
rev
expression, see L. TRIBE, AMERICAN CONSTITUTIONAL LAw 933 (2d ed. 1988), although the
Supreme Court has in recent years moved toward assimilating the two, see id. at 890.904.
In Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986),
a bare majority of the Supreme Court upheld a Puerto Rican statute prohibiting local casinos
from advertising to local residents (while allowing such advertising elsewhere). The opinion
reasoned, in part, that "the greater power to completely ban casino gambling necessarily
includes the lesser power to ban advertising of casino gambling." Id. at 345-46. But see L.
TRIBE, supra, at 901-04 (criticizing this opinion). See also Frank v. Minnesota Newspaper
Ass'n., 109 S. Ct. 1734 ( 1989) (challenge to federal statute prohibiting mailing of publications
containing advertising for lotteries is moot after enactment of new statutes).
er
191. U.S. CoNST. art. I,§ 8. Under standard commerce clause analysis, the restrictive
state cannot project its laws to regulate commerce in other states. See, e.g., Baldwin v. G.A.F.
Seelig, Inc., 294 U.S. 511, 521 (1935). Compare Brown-Forman Distillers Corp. v. New York
State Liquor Auth., 476 U.S. 573, 583 ( 1986) (New York "affirmation" law violates commerce
clause because its practical effect is to control liquor prices in other states and because it
pe
creates the likelihood of inconsistent obligations for the seller in different states) with crs
Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987) (Indiana statute regulating acqui-
sition of "control shares" in Indiana corporations does not violate the commerce clause
because it does not discriminate against out-of-state entities acquiring control and because
it creates no risk of inconsistent legislation, given its exclusive application to Indiana cor-
porations, in which Indiana clearly has an interest).
True, in analyzing state laws that arguably burden interstate commerce, the Court has
treated state regulations attempting to protect public health and safety more favorably than
ot
those based on economic concerns. See L. Tribe, supra note 190, at 437. Nonetheless, "reg-
ulations that individually seem only local in impact can collectively burden multi-state en-
terprises to such a degree that all will be barred by the negative implications ofthe commerce
clause." Id. at 434. This problem, together with the first amendment difficulties posed by a
ban on advertising in the restrictive state through nationally distributed publications, see
tn
supra note 190, would create significant hurdles for any legislative efforts to deter surrogacy
in this particular manner.
192. To develop just one illustration, New Jersey's Code of Criminal Justice provides,
for example:
2C:5-2 Conspiracy
a. Definition of conspiracy. A person is guilty of conspiracy with another person
rin
or persons to commit a crime if with the purpose of promoting or facilitating its

commission he:
(1) Agrees with such other person or persons that they or one or more
of them will engage in conduct which constitutes such crime or an attempt
or solicitation to commit such crime; or
(2) Agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to commit such
rep
crime.. ..
N.J. STAT. ANN.§ 2C:5-2 (West Supp. 1989).
New Jersey case law recognizes Wharton's Rule, which disallows charging a conspiracy
to commit an offense that requires the concerted action of two or more individuals when
the indictment also shows the completed offense. See State v. Aircraft Supplies, Inc., 45 N.J.
ed
requirements for such inchoate offenses or vicarious liability were met

within this state. 193
iew
Similarly, consistent with a territorial approach, any ban or penalty
Super. 110, 131 A.2d 571 (Passaic County Ct. Law Div. 1957) (bribery); W. LAFAVE & A.
ScoTT, JR., CluMINAL LAw 565-66 (2d ed. 1986). Surrogacy, requiring the concerted action
of the semen-provider and the surrogate, would meet the traditional criteria for Wharton's
Rule. Note, however, that depending upon how the legislature defines the crime of surrogacy,
the participation of a broker, physician, midwife or the semen-provider's wife might trisger
the "third-party exception" to Wharton's Rule, see id. at 565 ("rule does not apply when the
rev
number of conspirators exceeds the essential participants in the contemplated crime"), thus
allowing prosecution and conviction for the substantive offense and the conspiracy. Further,
some authorities emphasize that while Wharton's Rule precludes cumulative punishment for
the conspiracy and the substantive crime, the rule should not apply when the conspirators
have not yet committed the substantive offense; "[t]hat an offense inevitably requires concert
is no reason to immunize criminal preparation to commit it." MoDEL PENAL CoDE § 5.04
comment at 483 (revised commentaries 1985).
193. The Model Penal Code defines the "territorial applicability" of criminal laws
broadly, according to a provision that 29 states have used as a model in enacting or proposing
legislation:
Section 1.03. Territorial applicability
er
(I) Except as otherwise provided in this Section, a person may be convicted
under the law of this State of an offense committed by his own conduct or the
conduct of another for which he is legally accountable if:
(a) either the conduct that is an element of the offense or the result
pe
that is such an element occurs within this State; or
(b) conduct occurring outside the State is sufficient under the law of
this State to constitute an attempt to commit an offense within the State;
or
(c) conduct occurring outside the State is sufficient under the law of
this State to constitute a conspiracy to commit an offense within the State
and an overt act in furtherance of such conspiracy occurs within the State;
or
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(d) conduct occurring within the State establishes complicity in the

commission of, or an attempt, solicitation, or conspiracy to commit, an
offense in another jurisdiction that also is an offense under the law of this
State; or
(e) the offense consists ofthe omission to perform a legal duty imposed
tn
by the law of this State with respect to domicile, residence or a relationship

to a person, thing or transaction in the State; or
(f) the offense is based on a statute of this State that expressly prohibits
conduct outside the State, when the conduct bears a reasonable relation to
a legitimate interest of this State and the actor knows or should know that
his conduct is likely to affect that interest.
(2) Subsection (I)(a) does not apply when either causing a specified result or a
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purpose to cause or danger of causing such a result is an element of an offense and

the result occurs or is designed or likely to occur in another jurisdiction where the
conduct charged would not constitute an offense, unless a legislative purpose plainly
appears to declare the conduct criminal regardless of the place of the result.
(3) Subsection (l)(a) does not apply when causing a particular result is an ele-
ment of an offense and the result is caused by conduct occurring outside the State
ep
which would not constitute an offense if the result had occurred there, unless the
actor purposely or knowingly caused the result within the State. ...
MODEL PENAL CODE§ 1.03 & comment at 40-41 & nn.I2-13 (revised commentaries 1985).
The commentaries list the following states as those influenced by this provision or its
predecessor: Arizona, Arkansas, Delaware, Hawaii, Indiana, Kentucky, Maine, New Hamp-
Pr
ed
against specific conduct by the surrogate or the adoptive couple would

cover prohibited behavior in the state enacting such measures. 194 For
iew
example, such bans might prohibit entering into a surrogacy agreement
in the restrictive state, as in the first hypothetical case, 195 or soliciting
the surrogate there, as possibly in the fourth scenario. 196 Anticipatory
or accessorial conduct by such individuals in the restrictive state would
likewise trigger application of these laws.
A more unusual approach would allow the restrictive state to cri-
minalize conduct occurring exclusively outside its borders. Under a
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provision of the American Law Institute's Model Penal Code that has
influenced the law in twenty-nine states, a state may convict a person
under a statute expressly prohibiting "conduct outside the State, when
the conduct bears a reasonable relation to a legitimate interest of this
State and the actor knows or should know that his conduct is likely to
shire, New Jersey, New York, Ohio, Oregon, Pennsylvania, Texas, Maryland, Massachusetts,
Michigan, Tennessee, Vermont, West Virginia, Colorado, Aorida, Georgia, Illinois, Iowa,
er
Kansas, Montana, Utah and Oklahoma. Id. at nn. 12-13.
194. Like the broker, they too could be charged with conspiracy or accessorial liability
under the same territorial conditions described supra note 193. For a more extended dis-
cussion of the restrictive state's power to punish the parties to the agreement for activities
upon their return to this state, see infra notes 208-10 and accompanying text.
pe
195. See supra text accompanying notes 27-29. Cf. MoDEL PENAL CoDE § 1.03 com-
ment at 39 n.9 (revised commentaries 1985) (explaining devices traditionally used to allow
assertion of jurisdiction when substantial elements of offense occurred in prosecuting state
even though last element occurred elsewhere).
196. See supra text accompanying notes 164-68. Sending payments for the surrogate
to the restrictive state could produce similar consequences but in this scenario, by hypothesis,
payment occurs elsewhere. See id. In this same scenario, the restrictive state could respond
to any activities its local surrogate undertakes in her home state under appropriately drawn
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prohibitions. Thus, this state could criminalize her use of surrogacy profits within this state,
although enforcement problems easily suggest themselves. For instance, suppose payments
were received in cash. Evasionary tactics would also remain available to the very cautious.
Suppose the surrogate, while domiciled in the restrictive state, stays out of the state from
the time of the insemination until the conclusion of the adoption proceedings.
tn
Despite the state's interest in outlawing the use of surrogacy profits, the constitutional
right to privacy would prohibit any attempt by the restrictive state to criminalize the sur-
rogate's "being pregnant pursuant to a surrogacy arrangement" even if such "conduct" oc-
curred within this state's borders. See, e.g., Webster v. Reproductive Health Servs., 109 S.
Ct. 3040 (1989); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973);
Cleveland Bd. ofEduc. v. LaAeur, 414 U.S. 632 (1974). Any pregnancy-related behavior, for
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example, prenatal chromosomal testing, although undertaken pursuant to a contract illegal

under the restrictive state's law, would receive similar constitutional protection so long as
the surrogate freely chooses to abide by the agreement. The restrictive state could, of course,
support her choice should she prefer to repudiate such parts of the agreement. See In re Baby
M, 217 N.J. Super 313, 375, 525 A.2d 1128, 1159 (Ch. Div. 1987) (although upholding
surrogacy agreement generally, court says contract cannot control surrogate's decision whether
to terminate her pregnancy), ajJ'd in part and rev'd in part, 109 N.J. 396, 537 A.2d 1128
rep
(1988).
Even apart from the right to privacy, the Constitution limits the extent to which a state
can criminalize any status or physical condition. See, e.g., Robinson v. California, 370 U.S.
660 (1962) (criminalization of status of narcotics addiction inflicts cruel and unusual pun-
ishment in violation of eighth and fourteenth amendments).
ed
affect that interest." 197 Taken literally, this provision enables the leg-
iew
islature of the restrictive state to enact a statute criminalizing the out-
of-state conduct not only of its own residents who travel elsewhere to
participate in surrogacy arrangements, but also that of nonresidents
who serve as brokers, physicians, midwives or intermediaries in such
arrangements if they know or should know that they are dealing with
individuals from a state disallowing or restricting surrogacy. According
to the Code, such legislation must explicitly address out-of-state con-
rev
duct. For example, it must address entering into, participating in or
brokering a surrogacy agreement outside the restrictive state, and it
should explicitly make purpose, knowledge, recklessness or
negligence 198 by the actor as to the restrictive state's interest 199 an
element of the offense.
This approach finds support in modem choice-of-law theories,
which have rejected territoriality in favor of the general view that a
er
state's interests- its reasons for enacting a particular domestic law or
deciding domestic cases in a particular way-are often implicated by
out-of-state events. 200 Although these theories have concentrated al-
most exclusively on civil, not criminal, law, a few modem scholars
pe
have explicitly said that the state interests reflected in some criminal
laws extend beyond the enacting state's geographic boundaries. 201 Us-
197. See supra note 193 (section 1.03(l)(f)).
198. These are the criminal levels of culpability or "mens rea" specified and defined
in the Model Penal Code, MoDEL PENAL CODE § 2.02 & explanatory note & comment at
227-44 (revised commentaries 1985), and adopted in large part in most American jurisdic-
tions, id. at 233 n.4, 235 n.ll, 238-39 nn.l8-19, 244 n.34. Because the provision authorizing
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prohibitions on out-of-state conduct requires, at least, that the actor "should know that his
conduct is likely to affect [the enacting state's legitimate] interest," see supra text at note 197,
a defendant must have been at least "negligent" as to this element, as the Model Penal Code
uses this term.
199. Unless specifically stated otherwise, mistake or ignorance of the law defining
n
the offense is no excuse. MoDEL PENAL CODE § 2.02(9) & comment at 250-51 (revised
commentaries 1985). Rather, for example, the broker's culpability here would be satisfied by
knowledge (or negligence) that she deals with persons who have sought to participate in an
out-of-state procedure; that, in tum, should give the broker knowledge or put the broker on
notice that these clients have likely sought to evade a restrictive regime at home. Besides, it
nt
seems inconceivable that any broker would not learn the domicile of the clients in the prep-
aration of the agreement, and sophisticated brokers would undoubtedly have familiarized
themselves with all the pertinent surrogacy laws in the several states. Intuitively, one may
not so readily draw the same conclusions about the out-of-state physicians or midwives who
provide medical assistance for domiciliaries of a restrictive state who travel elsewhere to
ri
participate in a surrogacy arrangement.

200. See supra notes 102-05 and accompanying text. Interest analysis, in particular,
would support a departure from a strict territorial view.
ep
201. See B. CuRRIE, Justice Traynor and the Conflict of Laws, in SELECTED EssAYS
ON CoNFLICT OF LAws, supra note 3, at 655-59 (state has power to punish and often an
interest in punishing some violations of its criminal laws that occur outside the state); Ely,
supra note 87, at 198 n.67 (making this point as part of a criticism of interest analysis);
George, Extraterritorial Application ofPenal Legislation, 64 MICH. L. REv. 609 (1966); Regan,
Pr
ed
ing this approach, the restrictive state might have reasons to invoke
applicable criminal sanctions in each of the four hypothetical cases
iew
because in each the restrictive state is the domicile of at least one of
the parties; accordingly, the situs of the agreement and its place of
performance would become irrelevant, and evasionary efforts would
not necessarily thwart the policies of the restrictive state.
Despite the support of such respected authority as the Model Penal
Code and the appeal of modem choice-of-law scholarship, however,
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the virtual nonexistence of any state criminal prohibitions attempting
to assert authority over exclusively out-of-state conduct suggests the
extraordinary nature of this approach and the pervasiveness of a ter-
ritorially limited concept of criminal law. 202 Further, even if federal
statutes can apply extraterritorially in international cases, based on the
assertion of interests by the United States, 203 the notion of extraterri-
supra note 188, at 1908-13; Rotenberg, Extrate"itorial Legislative Jurisdiction and the State
er
Criminal Law, 38 TEx. L. REv. 763 (1960). A particularly helpful discussion of this otherwise
virtually ignored topic appears in Leflar, supra note 41. But cf. B. CuRRIE, supra, at 658
(perhaps limiting extraterritorial reach of criminal statutes to cases in which one of enacting
state's domiciliaries harms another of enacting state's domiciliaries elsewhere).
202. Why, for example, do not states with gambling prohibitions, some of which
pe
must be designed in part to protect local residents from squandering their own financial
resources, attempt to expand such laws to cover the local resident who travels to Las Vegas
or Atlantic City to engage in legalized gambling there? (Although I believed this question to
be original when I formulated it, I later discovered I am not the first to raise it. See Regan,
supra note 188, at 1909).
Although the comment to the Model Penal Code notes that several states have cri-
minalized out-of-state evasions of state marriage restrictions by state domiciliaries, MODEL
PENAL CODE § 1.03 comment at 55-56 nn. 63-67 (revised commentaries 1985), virtually all
ot
of these statutes require as an element of the offense some conduct within the enacting state,
such as cohabitation within the enacting state following a marriage elsewhere. With respect
to the one apparent exception, TEx. PENAL CoDE ANN.§ 25.01(a) (Vernon 1989), the ac-
companying "practice commentary" indicates that the provision is virtually useless because
the "state would not have jurisdiction unless the parties moved to Texas, but in that event
tn
[a different provision of the Penal Code] would apply and the state would not have to prove
the subsequent out-of-state marriage." Id. at 393. Venue requirements reinforce this conclu-
sion. Id. Further, the Model Penal Code commentaries explain that this Texas law "was no
doubt intended to apply to persons over whom Texas has legislative jurisdiction," presumably
Texas domiciliaries. MoDEL PENAL CoDE § 1.03 comment at 55 n.63 (revised commentaries
1985). But see Ely, supra note 87 (questioning assumption of states' interests in only their
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own domiciliaries).
Even if Texas does and can punish its own domiciliaries who travel outside the state
to avoid local marriage restrictions, but see Leflar, supra note 41, at 50-51, could Texas punish
the nonresident who knowingly performs the marriage ceremony for them? See id. That no
state appears to have legislation extending so far would make truly extraordinary any attempt
by the restrictive state to reach a nonresident broker or intermediary who acts exclusively
out-of-state. See also W. LAFAVE & A. ScoTT, supra note 192, at 136 ("a state ... probably
rep
has no power to protect its own citizens from conduct by non-citizens taking place in other
states and resulting in harm there"). Cf. infra note 204 (state power over own residents).
203. See, e.g., REsTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES§ 402 (1987); George, supra note 201. This authority has been invoked, for
example, to combat terrorism against United States citizens abroad. See 18 U.S.C.A. § 2331
ed
torial criminal statutes within this country undoubtedly challenges cer-

tain basic understandings about how our federal system operates. 204
iew
For example, how can each state freely experiment with its own re-
sponses to the difficult questions of social policy posed by surrogacy if
a restrictive state's prohibition can reach activities that the state in
which they occur has chosen to permit?205 And consider the anomaly
of the restrictive state's prosecution of an out-of-state broker or phy-
sician who, while confining his activities to his own state, deals with
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the restrictive state's residents, given that this intermediary's own state
(West Supp. 1990) (terrorist acts abroad against U.S. nationals). Compare United States v.
Columba-Colella, 604 F.2d 356, 360 (5th Cir. 1979) (court lacks jurisdiction when defendant's
receipt of stolen vehicle in foreign commerce occurred wholly in Mexico despite effect on
U.S. citizens) with United States v. Yunis, 681 F. Supp. 896 (D.D.C. 1988) (U.S. federal court
has jurisdiction over hijacking of Jordanian plane by Lebanese defendant in Middle East).
See also United States v. Verdugo-Urquidez, 110 S. Ct. 1056, 1068-69 & nn. 1-4 (1990)
(Brennan, J., dissenting) (listing various federal laws making "foreign nationals criminally
er
liable ... for conduct committed entirely beyond the limits of the United States that never-
theless has effects in this country"). A proposed federal ban on surrogacy would apply to all
United States citizens who engage in prohibited activities outside this country. H.R. 576,
IOlst Cong., I st. Sess. (1989) (Anti-Surrogate-Mother Act of 1989 introduced by Rep. Robert
Doman, R-Cal.). See infra note 366 and accompanying text.
204. One notable authority for a state's criminalization of conduct by its own resi-
pe
dents outside its borders was limited on its facts to conduct on the high seas, not a sister
state. Skiriotes v. Florida, 313 U.S. 69 (1941) (Florida can properly apply to its own citizens
outside territorial limits of Florida prohibition on using diving equipment to obtain com-
mercial sponges). See State ex rei. Chandler v. Main, 16 Wis. 422, 438 (1863) (in upholding
constitutionality of criminal absentee ballot regulation, court observed that a state may enact
"laws which are binding and obligatory upon [its own citizens] everywhere, and for violation
of which they may be punished whenever the state can find them within its jurisdiction").
Regan reaches a similar conclusion, that the Constitution prohibits states from legis-
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lating extraterritorially (the "extraterritoriality principle"), and his analysis reinforces my

own difficulty in finding a specific source in the Constitution for this intuitively appealing
rule. Regan, supra note 188, at 1885 ("[T]he extraterritoriality principle is not to be located
in any particular clause. It is one of those foundational principles of our federalism which
we infer from the structure of the Constitution as a whole."). Regan also argues that the
tn
extraterritoriality principle, not dormant commerce clause analysis, presented the real prob-
lem in CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69 (1987). Regan supra note 188, at
1873-84; see supra note 191.
Regan's analysis ultimately provides more discomfort than reinforcement, however,
because of his narrow concept of unconstitutional extraterritoriality. In his view, states prob-
ably can apply their laws extraterritorially "where the state's own citizens are concerned."
rin
Regan, supra note 188, at 1908. Given the high unlikelihood of state efforts to legislate
extraterritorially in situations not concerning their own domiciliaries, the exception that
Regan recognizes in the extraterritoriality principle reduces the principle to one of disap-
pointingly little importance. As a result, I hope that the two invitations that Regan extends
to other scholars to pursue his inquiries further, see id. at 1887, 1912, produce results. If this
Article were not already committed to the specific topic of surrogacy, I might be tempted to
try to accept his invitations myself!
ep
205. See, e.g., Cruzan v. Missouri Dep't of Health, 110 S. Ct. 2841, 2859 (1990)
(O'Connor, J., concurring)(" 'laboratory' of the States"); L. TRJBB, supra note 190, at 583.
Of course, the state's freedom to "experiment" does not allow it to interfere unduly with
protected constitutional rights, see, e.g., Roe v. Wade, 410 U .S. 113 (1973), an issue that has
already arisen in challenges to surrogacy restrictions. See, e.g., In re Baby M, 109 N.J. 396,
441-52, 537 A.2d 1227, 1253-55 (1988).
Pr
ed
cannot constitutionally limit his services to local clients?206 As a result,

should the restrictive state attempt to assert its police power over sur-
iew
rogacy activities that occur wholly outside its boundaries, it will be
venturing into an unfamiliar, untested, and perhaps constitutionally
problematic experiment. Practical difficulties, including those of juris-
diction, jury composition and enforcement, would loom large as well. 207
A closely related question asks whether the restrictive state can
prosecute and punish its own domiciliaries for conduct occurring within
rev
this state after they have participated in an out-of-state surrogacy trans-
action. Could the restrictive state, for example, criminalize the adoptive
parent-child relationship or the family living arrangement (say, as an
illegal placement) following the return of the parties to this state? Al-
though such prosecutions have followed out-of-state marriages con-
tracted elsewhere by parties seeking to avoid their home states' laws, 208
an out-of-state surrogacy transaction culminating in an out-of-state
adoption stands on different footing. An adoption proceeding does not
er
result in the license and registration that a marriage produces, but rather
in a judicial decree which, if valid and final, evokes especially strict
full faith and credit requirements. 209 Consequently, the critical variable
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206. In Doe v. Bolton, 410 U.S. 179, 200 (1973), the Supreme Court invalidated
under the privileges and immunities clause Georgia's residency requirement for those seeking
abortions there. This clause protects out-of-staters from unreasonable discrimination. See
supra note 85 and accompanying text. But cf. Sosna v. Iowa, 419 U.S. 393 (1975) (upholding
under equal protection and due process clauses Iowa's durational residency requirement for
divorce petitioners).
207. Apart from extradition procedures, however, case law has established that even
a state's abduction of an out-of-state defendant to bring her to trial will not vitiate the court's
ot
jurisdiction to try this defendant criminally. Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v.
Collins, 342 U.S. 519 ( 1952). Further, most state constitutions guarantee a criminal defendant
a trial by jury where the offense was committed, see Letlar, supra note 41, at 46. And while
the Supreme court has never held applicable against the states the sixth amendment's re-
tn
quirement that criminal juries be drawn from the "State and district wherein the crime [has
been] committed," a number oflower courts have assumed it so applies. See, e.g., Davis v.
Warden, 867 F.2d 1003 (7th Cir.), cert. denied sub nom. Davis v. O'Leary, 110 S. Ct. 285
(1989); Hernandez v. Municipal Court, 49 Cal. 3d 713, 781 P.2d 547, 263 Cal. Rptr. 513
(1989); Mareska v. State, 534 N.E.2d 246 (Ind. Ct. App. 1989). For a thorough discussion of
this geographic requirement, often called "vicinage," and its history, see Kershen, Vicinage,
29 OKLA. L. REv. 801 (1976); 30 OKLA. L. REv. 3 (1977). Of course, such difficulties may
rin
be resolved through creative analysis of metaphysical questions such as "where is the extra-
territorial crime committed?" To return to the illustration used in text, where does the vi-
olation of the restrictive state's anti-surrogacy law occur when the broker engages in prohibited
conduct wholly outside the state, in a place whose law permits such conduct? Cf. Alabama
Great Southern R.R. v. Carroll, 97 Ala. 126, II So. 803 (1892) (exemplifYing a rigid and
questionable response to such inquiries in the torts context under the traditional approach
to choice oflaw); Hernandez v. Municipal Court, 49 Cal. 3d at 714 n.l, 781 P.2d at 548 n.l,
rep
263 Cal. Rptr. at 514 n.l ("in the present day criminal justice system the vicinage requirement
... protects the right of the offended community to pass judgment in criminal matters").
208. See MoDEL PENAL CODE § 1.03 comment at SS n.63 (revised commentaries
1985) (compiling pertinent statutes); supra note 202.
209. See supra note 19 and accompanying text. As a result, prosecutions following
out-of-state remarriages based on out-of-state divorces (which result in out-of-state judicial
ed
becomes the out-of-state adoption proceeding, the focus of the analysis

ofthe four hypothetical cases. 210
iew
b. Civil remedies
The restrictive state might attempt to deter surrogacy by creating

or recognizing a variety of civil causes of action to be used against a
party or an intermediary. For example, the restrictive state might allow
rev
the surrogate to sue the broker for damages or perhaps treble dam-
ages,211 or it might allow her to recover from the adoptive couple for
tortious interference with her custody of her child. 212 Alternatively, this
state might seek to adjudicate suits brought against the surrogate for
damages following her breach of the contract.
Assuming the absence of a final decree to the contrary from a sister
state213 and assuming the use of a modem choice-of-law approach em-
phasizing policy rather than bare territoriality, 214 the restrictive state
er
would have ample grounds for applying such deterrent measures in
multijurisdictional fact patterns such as those depicted in the four hy-
pothetical cases. The question requiring additional analysis concerns
pe
instead the jurisdictional basis for the courts of the restrictive state to
entertain such actions.
Given the availability of an appropriate long-arm statute, the re-
strictive state could assert authority to adjudicate such litigation in any
case in which the defendant-intermediary, adoptive couple or surro-
gate- is present in the restrictive state at the time of service or is dom-
ot
decrees) provide a more apt analogy than prosecutions following out-of-state marriages sim-
pliciter. See Williams v. North Carolina, 317 U.S. 287 (1942), 325 U.S. 226 (1945) (bigamy
prosecutions following out-of-state remarriages based on out-of-state divorces).
210. Hence, the validity and consequences of the out-of-state adoption in the forum
tn
state will not only determine whether the restrictive state can prosecute its own domiciliaries
in these cases, but also whether this state must recognize the adoptive couple as the child's
parents for all purposes, for example, as appropriate sources of parental consent for the child's
medical treatment. See H. CLARK, supra note 33, at 335. See also supra notes 74-77 and
accompanying text (status versus incidents of adoption).
211. The courts consider such remedies civil, not penal, so long as a private party
who has suffered the wrong, not the state, receives the amount that the defendant must pay.
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See Loucks v. Standard Oil Co. of N.Y., 224 N.Y. 99, 120 N.E. 198 (1918) (Cardozo, J.).
212. See, e.g., Wood v. Wood, 338 N.W.2d 123 (Iowa 1983) (recognizing cause of
action); H. CLARK, supra note 33, at 384-88. But for such remedies to apply, the surrogate
must qualify as a parent entitled to custody-a fundamental question raised in every surrogacy
controversy. See, e.g., In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988).
213. See supra notes 208-10 and accompanying text (making similar point with re-
ep
spect to restrictive state's use of criminal statutes).

214. See supra note 200. With at least one domiciliary of the restrictive state par-
ticipating in each scenario, the constitutional constraints imposed by the due process and
full faith and credit clauses would be met, especially if the state's anti-surrogacy policies
reflected concerns for such individuals. See supra notes 54 & 142 and accompanying text.
Pr
d
we
iciled there, 215 as in the first two scenarios. 216 Jurisdiction would also
attach when the defendant has acted in a way that shows purposeful
availment of the benefits of this state, 217 say, by executing the surrogacy
agreement there. If, for example, the broker has remained outside the
restrictive state but has specifically directed advertisements or solici-
ie
tations within its borders, such conduct would satisfy the test for the
constitutional exercise of jurisdiction imposed by the due process
clause. 218 If, on the other hand, the out-of-state broker was simply aware
that something might happen in the restrictive state or has simply
rev
caused an effect there, say, by dealing outside the restrictive state with
domiciliaries of the restrictive state, then this state would lack the
authority to entertain the resulting action. 219 A parallel analysis would
determine whether the restrictive state could entertain this type of law-
suit against the nonresident surrogate in the third hypothetical case or
against the nonresident adoptive couple in the fourth. 220
c. Injunctive relief
r
Although the restrictive state might also seek to deter multijuris-
ee
dictional surrogacy arrangements by issuing injunctions against partic-
ular adoption proceedings elsewhere, this approach holds little promise
for success. True, comity may encourage a permissive jurisdiction to
respect an anti-suit injunction from a court of the restrictive state. Most
authorities concede, however, that full-faith-and-credit principles do
p
215. Presence or domicile within the forum traditionally has provided an adequate
basis for a court's assertion of in personam jurisdiction. See supra note 52; Burnham v.
Superior Court, 110 S. Ct. 2105 ( 1990); E. ScoLES & P. HAY, supra note 20, at 263-70.
ot
216. These scenarios hypothesize that the surrogate and the adoptive couple have
domiciles in the restrictive state. See supra text accompanying notes 28 & 88-89. These
scenarios do not specify the domicile or base of operations of the broker or other interme-
diaries.
217. See supra note 52.
tn
218. See, e.g., Calder v. Jones, 465 U.S. 783 (1984); Keeton v. Hustler Magazine,
Inc., 465 U.S. 770 (1984). For example, if in the first, second or fourth hypothetical case the
surrogate from the restrictive state who responded to the broker's advertising wished to sue
this intermediary in this state for damages she incurred as a result of the transaction, such
advertising should satisfy the constitutional requirements for the suit to proceed in this forum.
Under a properly drafted "long-arm" statute, the restrictive state's courts can assert personal
jurisdiction over a commercial defendant who, although never present in this state, has
rin
"purposefully directed" his efforts "toward residents of [the] State," Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 476 (1985), or has purposefully availed himself of the benefits of
this state, Kulko v. Superior Court, 436 U.S. 84, 94 (1978). But see id. at 96-97 (without
more, defendant's "causing an effect" in the state does not satisfy due process requirement
for state's assertion of jurisdiction); Asahi Metal Industry Co. v. Superior Court, 480 U.S.
102, 112-13 (1987) (plurality opinion) (Japanese corporation's awareness that valves would
rep
be incorporated into tire tubes sold in California, where they caused injury, does not constitute
purposeful availment of California market as required for California court to assert juris-
diction over corporation in resulting litigation).
220. See supra text accompanying notes 136 & 164-67.
d
we
not require deference to such decisions, even when issued by sister-
state courts. 221 And assuming cooperative evasion of the restrictive
state's policies by the surrogate and the adoptive couple, anti-suit suits
will be a predictably rare occurrence. 222 Similarly, statutory provisions
attempting to prevent adoption proceedings and other surrogacy-related
ie
litigation elsewhere will be unlikely to achieve the restrictive state's
goals, if we hypothesize parties bent on purposeful evasion and other
jurisdictions committed to a permissive position on surrogacy. 223
In sum, the restrictive state cannot count on keeping surrogacy
ev
cases involving its own domiciliaries within its own courts. In addition,
careful control of contacts by out-of-state parties, as one might expect
from sophisticated out-of-state brokers, will effectively limit the op-
portunities for the restrictive state to hear civil cases in which it might
rr
hope to apply its deterrent measures. These conclusions, together with
the finality and certainty promised by an out-of-state adoption de-
cree,224 further diminish the restrictive state's control over multijur-
isdictional surrogacy arrangements.
e
B. Surrogacy Arrangements Not Concluded by Adoption Proceedings
pe
1. CONSENSUAL TRANSFERS OF CUSTODY
Despite the finality and certainty that a valid adoption decree from
a sister-state court would bring to the familial status presumably in-
tended upon entry into a surrogacy arrangement, some parties may
bypass such proceedings. Their reasons might include the desire to
ot
avoid the "hassle" and expense or the fear of state intervention, par-
ticularly if surrogacy becomes illegal in some jurisdictions. In addition,
with respect to the latter reason, note that a number of states require,
as part of the adoption process, screening and approval of the adoptive
tn
221. See, e.g., James v. Grand Trunk Western R.R. Co., 14 Ill. 2d 356, 152 N.E.2d
858 (1958); E. ScoLES & P. HAY, supra note 20, at 945-46; R. CRAMTON, D. CURRIE & H.
KAY, supra note 31, at 652-53. But see Comment, Full Faith and Credit to Foreign Injunctions,
26 U. CHI. L. RBv. 633 (1959) (anti-suit injunctions evoke full faith and credit).
222. A party to the surrogacy arrangement will not file for an anti-suit injunction
unless she has decided to repudiate the agreement; but such changes of heart might well stop
rin
the out-of-state adoption proceeding from occurring anyhow. See supra note 68 and accom-
panying text. For the restrictive state itself or its agent to seek an anti-suit injunction, the
state or its agent must learn of the pendency of the out-of-state adoption-a fact that the
surrogacy parties may do their best to keep from disclosure. See supra notes 62 & 82 and
accompanying text.
223. See, e.g., Tennessee Coal, Iron & R.R. Co. v. George, 233 U.S. 354 (1914)
ep
(transitory action can be maintained elsewhere despite enacting state's attempt to keep such
cases in its own courts); Crider v. Zurich Ins. Co., 380 U.S. 39 (1965) (upholding sister state's
power to enforce another state's workers compensation law, despite enacting state's provisions
confining claims to local compensation board).
Pr
ed
home by a state social service department; these requirements usually

govern independent (non-agency) placements but may not control in
iew
stepparent adoptions, in which the spouse of one biological parent seeks
legal recognition after termination of the other biological parent's pa-
rental status. 225 Whether and how such screening and approval will be
required for surrogacy-based adoptions, 226 and therefore whether such
procedural requirements might prompt some individuals to avoid the
adoption process altogether, will depend upon a number of issues each
rev
jurisdiction must resolve: its particular response to surrogacy; the pre-
adoption legal status of the semen-provider, whose recognition as "fa-
ther" could contravene a presumption of legitimacy;227 and any re-
sulting classification of surrogacy-based adoptions as either "indepen-
dent placements" or "stepparent adoptions." 228
In any case in which all parties agree that the semen-provider and
his wife will rear the child, foregoing adoption or other judicial pro-
ceedings, 229 an informal consensual custody arrangement would en-
er
sue. 230 Without more, under such informal arrangements, the surrogate
225. See H. CLARK, supra note 33, at 906-07.
226. Proposed legislation in Nevada and New York, as well as the permissive alter-
native (Alternative A) of the Uniform Status of Children of Assisted Conception Act, would
pe
require such screening and approval before conception pursuant to a surrogacy agreement.
See supra note 103.
227. Proposed legislation in Nevada and New York and Alternative A of the Uniform
Status of Children of Assisted Conception Act would recognize the "intended parents" as
legal parents by means of a preconceptual judicial proceeding. See UNIF. STATUS OF CHIL-
DREN OF AssiSTBD CONCEPTION ACT§ 6, 9B U.L.A. 94-95 (Supp. 1990) (Alternative A);
supra notes 6 & 18 and accompanying text.
228. Many states explicitly treat stepparent adoptive placements differently from
ot
other adoptive placements. See H. CLARK, supra note 33, at 906-07. For example, New Jersey
law provides:
No person, firm, partnership, corporation, association or agency shall place, offer to
place or materially assist in the placement of any child for adoption in New Jersey
unless such person shall be the parent or guardian of the child, or such firm, part-
tn
nership, corporation, association or agency shall be an approved agency; provided,

however, that this prohibition shall not apply to the placement for adoption of a
child with a brother, sister, aunt, uncle, grandparent, natural father or stepparent of
such child.
N.J. STAT. ANN.§ 9:3-39(a) (West Supp. 1989).
In addition, for purposes of this law, the word "parent" means "a natural parent or
rin
natural parents, including the natural father of the child born out of wedlock who has ac-
knowledged the child." N.J. STAT. ANN.§ 9:3-38(f) (West Supp. 1989). If applicable to sur-
rogacy situations, such statutes would recognize the semen-provider as a natural parent with-
out a judicial proceeding. But see supra note 38 (presumption of legitimacy).
229. In other words, suppose they work out the entire matter informally without ever
going to court on any issue.
230. Although, theoretically, the parties might ask a court for a custody decree for-
rep
malizing their arrangement, if they were willing to go to court, why would they stop short
of seeking a more final and certain adoption decret!! On the other hand, they might seek an
adoption decree from a court unwilling to grant an adoption but willing to decide only the
more limited issue of custody. In that event, the analysis of custody proceedings, infra at
notes 236-308 and accompanying text, would become relevant here as well.
d
we
would remain the child's legal mother and either her husband or the
semen-provider would be recognized as the legal father, depending
upon the state's presumption of legitimacy and its requirements for
establishing paternity. Nonetheless, many states have begun to accord
a variety of legal rights and responsibilities to "de facto parents"-
ie
individuals who without a formal legal relationship to a child function
as parents and establish strong emotional ties. 231 In other words, an
informal consensual custody arrangement eventually could produce
legal consequences. In this context, moreover, legitimation laws in force
ev
in some states may become relevant; such laws provide that a father
can legitimate his otherwise illegitimate child by taking the child into
his home and rearing the child as his own. 232
Because these informal consensual custody arrangements emerge
rr
from agreement of the parties rather than through judicial action, the
precise configuration of connections that might make any such ar-
rangement a multijurisdictional case should not be important, so long
as all parties remain satisfied with their choices. In other words, if each
of the four scenarios hypothesized earlier produced an informal custody
e
arrangement rather than an out-of-state adoption decree, then no con-
flict-of-laws issues would be presented in the absence of some subse-
pe
quent litigation. 233 Moreover, even if an informal arrangement is chal-
lenged later, 234 the longer the child has lived under the arrangement,
the less likely a judicial decision from any state's court disrupting the
arrangement will become, given the importance of"continuity of care"
for the healthy development of all children. 235
ot
2. DISPUTES OVER CUSTODY AND VISITATION
Disputes over custody, visitation and support might arise after

conception but before the child's birth, 236 immediately after the child's
birth or much later in the child's life. Further, such disputes might
tn
231. See supra notes 21 & 79-80 and accompanying text.

232. For example, under the Uniform Parentage Act, adopted in 16 states, "A man
is presumed to be the natural father of a child if . . . while the child is under the age of
majority, he receives the child into his home and openly holds out the child as his natural
child." UNJP. PARENTAGE AcT§ 4(a)(4), 9B U.L.A. 287, 299 (1973). See H. CLARK, supra
rin
note 33, at 172.

233. Subsequent litigation might, for example, challenge the child's custody, see infra
notes 236-308 and accompanying text, or arise over claims for inheritance.
234. See infra notes 236-308 and accompanying text.
235. See, e.g., J. GoLDSTEIN, A. FREUD & A. SOLNIT, BEFORE THE BEST INTERESTS
OP THE CHILD 4 (1979).
ep
236. One can imagine custody disputes before the child's birth if, for example, a court
had attempted to resolve such issues prenatally or preconceptually. See UNJP. STATUS OP
CHILDREN OP ASSISTED CONCEPTION ACT, 9B U.L.A. 93-100 (Supp. 1990) (permissive al-
ternative in "uniform" act); supra note 6 and accompanying text (same); supra note 18 and
accompanying text (proposed Nevada and New York legislation).
Pr
ed
begin at one of the parties' initiation. For example, a surrogate may

regret her promise, as in Baby M, 231 or a semen-provider or his wife
iew
may repudiate the agreement following a change in their marital
status238 or the discovery of a "defect" in the child. 239 Alternatively,
a governmental authority, such as a state social service agency or de-
partment, might initiate proceedings to determine custody, visitation
and support upon learning that an illegal surrogacy arrangement had
occurred or upon finding some evidence of abuse or neglect of the child.
rev
Finally, disputes might occur following an invalid adoption proceeding,
when the state issuing the decree acted without jurisdiction, thus al-
lowing relitigation of the child's fate to occur elsewhere. 240
This section will examine the special rules governing multijurisd-
ictionallitigation of this kind, emphasizing the reasons underlying these
rules, their applicability to surrogacy in general, and their consequences
for scenarios parallel to the four hypothetical multijurisdictional adop-
tion cases analyzed earlier. er
Whenever such custody litigation might begin, two important stat-
utes arguably govern the analysis, although neither was drafted in con-
templation of surrogacy disputes: the UCCJA, 241 a state statute now
in force throughout the United States, 242 and the federal PKPA. 243 Both
pe
laws attempt to respond to certain problems characteristic of child
custody adjudications: uncertainty, jurisdictional competition and
"child-snatching" or "seize-and-run" behavior by parents.
Before the development of these statutes, three special features of
child custody law produced these characteristic problems. First, the
ot
authority to decide child custody cases was thought to rest concurrently

in three different jurisdictions: the child's domicile, the state of the
child's physical presence and any state with personal jurisdiction over
both parents. 244 In other words, three different states or countries could
tn
237. In re Baby M, 217 N.J. Super. 313, 525 A.2d 1128 (Ch. Div. 1987), aff'd in part
238. See N.Y. Times, Jan. 26, 1989, at A7, col. 6 (describing one such case).
239. See J. AIU!EN, FAMILY LAw-CASES AND MATERIALS 890 (2d ed. 1985) (de-
scribing one such case).
rin
240. See supra notes 67-80 and accompanying text. Further, if a state can constitu-
tionally refuse to accord the usual incidents to a sister-state adoption decree, see supra notes
15-11 and accompanying text, and if such incidents can include custody (not just inheritance,
the usual issue), then custody litigation in one state might conceivably follow adoption pro-
ceedings in another. Finally, because of the lower level of deference triggered by foreign
country adoption decrees, see supra notes 134-35 and accompanying text, custody litigation
in an American forum might follow adoption proceedings in a foreign country.
rep
241. UNIP. CHILD CusTODY JuRISDICTION ACT, 9 U.L.A. pt. I, at 123 (1988).
242. See id. at 115-16 (listing jurisdictions adopting the UCCJA).
243. 28 U.S.C. § 1738A (1988). See supra text accompanying note 43.
244. See RESTATEMENT (SECOND) OP CONFLICT OP LAws§ 79 (1971); Sampsell v.
Superior Court, 32 Cal. 2d 763, 197 P.2d 739 (1948).
ed
have the power, simultaneously, to decide the custody of a single child,
iew
and they could use this power to issue conflicting custody decrees.
Second, child custody decrees are always modifiable upon a show-
ing of changed circumstances. 245 While adoption proceedings deter-
mine once and for all whom the law will recognize as a child's parents,
a custody determination simply purports to decide under whose care
a child will live while current circumstances persist. Even if full faith
and credit principles apply to such nonfinal decrees, a matter never
rev
definitively resolved, 246 a second state has at least as much freedom to
modify such decisions as the forum that rendered them. 247 Moreover,
given the amorphous "best-interests-of-the-child" standard that has al-
ways guided custody decisions, 248 different courts might well reach dif-
ferent conclusions on facts that remain quite similar. This phenome-
non, together with availability of multiple sites with concurrent
jurisdiction, often prompted a parent disappointed with an adverse
ruling to "seize" the child and seek a more favorable resolution through
modification in another forum.
er
Third, according to the opinion of four justices of the United States
Supreme Court in 1953 in May v. Anderson, 249 the due process clause
ofthe fourteenth amendment of the United States Constitution allows
pe
the losing parent to invalidate any custody decree issued by a state
court lacking in personam or personal jurisdiction over him. As a result,
some custody disputes might escape authoritative resolution. In the
opinion of Justice Frankfurter, whose vote was necessary to establish
a majority in May, however, such custody decrees are not invalid but
fail to evoke the full faith and credit requirement in sister states. If a
ot
sister state wishes to recognize such decrees under principles of comity,

it remains free to do so according to Justice Frankfurter's concurring
opinion. 250
The drafters of the UCCJA hoped to address all of these difficulties.
tn
They sought first to constrict jurisdiction to decide custody cases and

245. See, e.g., H. CLARK, supra note 33, at 836-37. Under section 409(a) of the
Uniform Marriage and Divorce Act, modification ordinarily cannot occur until at least two
years after the previous decree. UNIP. MARRIAGE AND DIVORCE ACT, 9A U.L.A. 628 (1987).
rin
246. SeeWorthleyv. Worthley, 44 Cal. 2d 465,468-69 n.*, 283 P.2d 19,22 n.l (1955)
(summarizing debate and noting pertinent cases).
247. In other words, "full faith and credit" simply entitles a decree or judgment the
same status (e.g., either final or modifiable) in sister states as it has in the state that rendered
it. See New York ex rei. Halvey v. Halvey, 330 U.S. 610, 615 (1947); supra note 19 and
accompanying text.
248. See, e.g., UNIP. MARRIAGE AND DIVORCE ACT § 402, 9A U.L.A. 561 ( 1987); In
ep
re Baby M, 109 N.J. 396, 453, 537 A.2d 1227, 1256 (1988); H. CLARK, supra note 33, at 788;
Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MicH. L.
REv. 477 (1984).
249. 345 u.s. 528 (1953).
250. Id. at 535-36 (Frankfurter, J., concurring).
Pr
ed
second to develop a provision, based on comity, under which a state

adopting the UCCJA would agree to respect the custody decrees issued
iew
by other states in conformity with the UCCJA. Finally, they sought to
implement Justice Frankfurter's position rather than that of the plu-
rality in May v. Anderson.251 In addition, the UCCJA includes mech-
anisms for interstate communication and cooperation in the event of
simultaneous proceedings in more than one state or the choice of an
inconvenient forum, 252 as well as a provision designed to deter "seize
rev
and run" by allowing a court to decline jurisdiction obtained through
the wrongful taking of the child from another state. 253
2S 1. See Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative
Remedy for Children Caught in the Conflict of Laws, 22 VAND. L. REv. 1207 ( 1969).
2S2. The UCCJA provides:
§ 6. [Simultaneous Proceedings in Other States)
(a) A court of this State shall not exercise its jurisdiction under this Act if at
the time offiling the petition a proceeding concerning the custody of the child was
pending in a court of another state exercising jurisdiction substantially in conformity
er
with this Act, unless the proceeding is stayed by the court of the other state because
this State is a more appropriate forum or for other reasons.
(b) Before hearing the petition in a custody proceeding the court shall examine
the pleadings and other information supplied by the parties under section 9 and
shall consult the child custody registry established under section 16 concerning the
pe
pendency of proceedings with respect to the child in other states. If the court has
reason to believe that proceedings may be pending in another state it shall direct
an inquiry to the state court administrator or other appropriate official of the other
state.
(c) If the court is informed during the course of the proceeding that a proceeding
concerning the custody of the ·child was pending in another state before the court
assumed jurisdiction it shall stay the proceeding and communicate with the court
in which the other proceeding is pending to the end that the issue may be litigated
ot
in the more appropriate forum and that information be exchanged in accordance

with sections 19 through 22. If a court of this State has made a custody decree before
being informed of a pending proceeding in a court of another state it shall imme-
diately inform that court of the fact. If the court is informed that a proceeding was
commenced in another state after it assumed jurisdiction it shall likewise inform
tn
the other court to the end that the issues may be litigated in the more appropriate
forum.
UNJF. CHILD CusTODY JuRISDICTION ACT§ 6, 9 U.L.A. pt. I, at 219-20 (1988). Section 7(a)
allows a court to decline jurisdiction "if it finds that it is an inconvenient forum ... and that
a court of another state is a more appropriate forum." Id. at 233. The section goes on to
authorize communication between the initial forum and the court of the other state. Id.
rin
Sections 19 through 22 also provide for interstate cooperation and communication. ld. at
319-26.
253. The UCCJA provides:
§ 8 [Jurisdiction Declined by Reason of Conduct]
(a) If the petitioner for an initial decree has wrongfully taken the child from
another state or has engaged in similar reprehensible conduct the court may decline
to exercise jurisdiction if this is just and proper under the circumstances.
rep
(b) Unless required in the interest of the child, the court shall not exercise its
jurisdiction to modify a custody decree of another state if the petitioner, without
consent of the person entitled to custody, has improperly removed the child from
the physical custody of the person entitled to custody or has improperly retained
the child after a visit or other temporary relinquishment of physical custody. If the
d
we
Accordingly, the UCCJA places jurisdiction to decide child cus-
tody matters in only four fora: (1) the child's "home state," (2) a state
in which jurisdiction serves the child's best interests because of the
child's or a contestant's significant connection with the state or because
of the availability of substantial evidence there, (3) a state in which
ie
the child's abandonment or an emergency accompany his physical pres-
ence, or (4) a state in which jurisdiction serves the child's best interest
and no other state has as.serted jurisdiction. 254 The UCCJA defines
"home state," the first of these jurisdictional bases, as:
ev
the state in which the child immediately preceding the time
involved lived with his parents, a parent, or a person acting
as parent, for at least 6 consecutive months, and in the case
of a child less than 6 months old the state in which the child
rr
petitioner has violated any other provision of a custody decree of another state the
court may decline to exercise its jurisdiction if this is just and proper under the
circumstances.
(c) In appropriate cases a court dismissing a petition under this section may
e
charge the petitioner with necessary travel and other expenses, including attorneys'
fees, incurred by other parties or their witnesses.
ld. at 251.
254. The UCCJA states:
pe
§ 3. (Jurisdiction]
(a) A court of this State which is competent to decide child custody matters has
jurisdiction to make a child custody determination by initial or modification decree
if:
(1) this State (i) is the home state of the child at the time of com-
mencement of the proceeding, or (ii) had been the child's home state within
6 months before commencement of the proceeding and the child is absent
from this State because of his removal or retention by a person claiming
ot
his custody or for other reasons, and a parent or person acting as parent
continues to live in this State; or
(2) it is in the best interest of the child that a court of this State assume
jurisdiction because (i) the child and his parents, or the child and at least
one contestant, have a significant connection with this State, and (ii) there
tn
is available in this State substantial evidence concerning the child's present

or future care, protection, training, and personal relationships; or
(3) the child is physically present in this State and (i) the child has
been abandoned or (ii) it is necessary in an emergency to protect the child
because be bas been subjected to or threatened with mistreatment or abuse
or is otherwise neglected [or dependent]; or
(4) (i) it appears that no other state would have jurisdiction under
rin
prerequisites substantially in accordance with paragraphs (I), (2), or (3), or

another state has declined to exercise jurisdiction on the ground that this
State is the more appropriate forum to determine the custody ofthe child,
and (ii) it is in the best interest of the child that this court assume juris-
diction.
(b) Except under paragraphs (3) and (4) of subsection (a), physical presence in
ep
this State of the child, or of the child and one of the contestants, is not alone sufficient
to confer jurisdiction on a court of this State to make a child custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for
jurisdiction to determine his custody.
Id. at 143-44.
Pr
ed
lived from birth with any of the persons mentioned. Periods

of temporary absence of any of the named persons are counted
iew
as part of the 6-month or other period. 255
This statute is now in force in every state and the District of
Columbia256 and is applied by some courts to international custody
disputes as well. 257
Whether and how the UCCJA should govern custody litigation
arising out of surrogacy arrangements is not at all clear. Certainly, if
rev
the litigation occurs prenatally to resolve conflicting claims to the child,
the inapplicability of many statutory terms would preclude direct re-
liance on the UCCJA. 258 "Fetal custody" or "custody of the intended
child," even for jurisdictional purposes, simply cannot be analyzed in
the terms used for already-born children. For litigation occurring soon
after the child's birth, the linguistic anomalies resolve themselves but
conceptual difficulties remain. Concepts such as "best interests," used
in two of the statute's jurisdictional bases, 259 evolved over years of
er
custody adjudications in which the children in question had developed
some relationship with both parents, usually in a single household.
Applying these ideas to newborn children of failed surrogacy agree-
ments requires considerable distortion of their meaning. 260 In addition,
pe
custody disputes produced by surrogacy arrangements may require the
courts to resolve other issues as well, including various contractual
claims. Under the due process guarantee, the authority to resolve con-
tractual claims clearly requires the court to have in personam juris-
diction over alllitigants. 261 The drafters of the UCCJA expressly chose
not to impose this requirement for custody jurisdiction, however, rea-
soning that status adjudications are distinguishable from ordinary ad-
ot
versary proceedings and that concern for the child's welfare calls for
special rules. 262 A straightforward application ofthe UCCJA to all cus-
255. /d. at 133 (§ 2(5)).
tn
256. See id. at 115-16.

257. UNJF. CHILD CusTODY JulliSDJCTION Acr § 23, 9 U.L.A. pt I, at 326 (1988).
See, e.g., In reMarriage of Ben-Yehoshua, 91 Cal. App. 3d 259, 154 Cal. Rptr. 80 (1979)
(California and Israel); Middleton v. Middleton, 227 Va. 82, 314 S.E.2d 362 (1984) (Virginia
and England). See also International Child Abduction Remedies Act, 42 U.S.C.A. §§ 11601-
11606 (West Pamphlet 1990) (provides procedure for return to habitual residence of children
rin
wrongfully removed or retained); Sheikh v. Cahill, 546 N.Y.S.2d 517 (1989) (applying Hague
Convention and implementing statute).
258. Suppose a pregnant surrogate sought to have the contract declared invalid and
custody awarded to her before birth?
259. See supra note 254 (§§ 3(a)(2), (4)).
260. See N.J. Bioethics Comm'n, Resolution ofParental Rights Disputes in Surrogacy
Arrangements 13 (Staff Discussion Paper, Feb. 22, 1989) (on file with the Wisconsin Law
rep
Review). Some of the "best interests" language of the UCCJA, does, however, refer to the
child's "future care." Supra note 254 (§ 3(a)(2)).
261. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); Kulko v. Su-
perior Court, 436 U.S. 84 (1978).
262. See Bodenheimer, supra note 251, at 1231-35. See also supra note 52.
d
we
tody litigation resulting from failed surrogacy bargains would raise
grave constitutional difficulties if the court tried to resolve the related
contractual claims without also satisfying the additional jurisdictional
requirements for taking such action.
Ultimately, such litigation, even in surrogacy disputes, purports
ie
to reach an outcome appropriate for the child's continued well-being.
To prevent the reemergence of the serious problems that plagued child
custody adjudication before the UCCJA, custody litigation in surrogacy
ev
cases should not be exempted from the statute's scope. Consistent with
the policies underlying the UCCJA, then, only the child's "home state"
or one of the other listed bases should be the site for litigating such
matters, 263 subject to the limitations imposed in the event of simul-
taneous proceedings elsewhere and in the event a party has wrongfully
rr
taken a child from another state. Indeed, if the UCCJA applies to the
custody aspect of surrogacy, then for purposes of determining where
jurisdiction lies in a multistate or multination case only the connections
listed in the pertinent section of the statute count. 264
e
Returning to the four hypothetical scenarios examined earlier, and
assuming that the adoption proceedings never occur, this conclusion
pe
has several predictable consequences. First, in all four cases, the child's
"home state" would have jurisdiction. As the UCCJA makes clear, the
identification of the "home state" depends not on the domicile of the
parents, however defined, but on the place where the child has lived
for the specified period of time with "his parents, a parent, or a person
acting as a parent. " 265 These terms could easily refer to the surrogate,
her husband, or both or to either member of the adoptive couple. 266
ot
Put somewhat differently, if in any of the earlier hypotheticals the child

spent the requisite time under the requisite circumstances in the more
hospitable state, that state could assert jurisdiction to decide a custody
tn
dispute as the child's home state. Alternatively, if the required con-

ditions were met in the restrictive state instead, this state would have
the authority as the home state to resolve the dispute. One could sim-
263. The UCCJA allows for concurrent jurisdiction while avoiding jurisdictional
conflict through priority-in-time and inconvenient forum provisions. See supra note 252;
rin
Bodenheimer, supra note 251, at 1226.

265. See supra text at note 255. The statute specifies six months, ignoring certain
absences. See supra note 254.
266. Even if any one of them is not considered a "parent," one of them could certainly
qualify as a "person acting as parent" if living with the child. For example, the semen-
ep
provider's wife may play this role; but might the presumption of legitimacy for the child of
a married surrogate preclude the semen-provider from qualifying under the statute if he is
not living with the child? See supra· note 38 and accompanying text. The surrogate could be
similarly foreclosed from qualifying by a prenatal or preconceptual judicial decree of par-
enthood for the adoptive couple. See supra notes 6 & 18 and accompanying text.
Pr
ed
ilarly apply to the hypotheticals the other possible bases of jurisdiction

under the statute-"best interest," presence plus emergency, or absence
iew
of jurisdiction elsewhere. 267 If the child were "wrongfully" brought to
either state, however, a court that otherwise acquired jurisdiction could
decline it under the UCCJA. 268 Courts in the restrictive state may have
to weigh two competing local interests here: providing the protections
of its anti-surrogacy laws to surrogates who might move to this state
with the child precisely for this purpose and discouraging "child-snatch-
ing" or "seize and run."
rev
The important point is that the variables that were significant in
considering adoption jurisdiction, such as the real or pretended dom-
icile of the parties or their presence in a state willing to depart from
the usual rule, 269 are not determinative here; the statute identifies the
only permissible bases for custody jurisdiction. 270
Once it has jurisdiction, a court can then proceed to decide the
case under its chosen substantive standard. Choice oflaw may become
er
a more important question in custody disputes arising out of surrogacy
cases than it has been in ordinary custody disputes, that is, post-divorce
disputes. If all jurisdictions use the same substantive standard, for ex-
ample, the "best interests" test, choice oflaw could be ignored, although
pe
different judges might take different positions on what "best interests"
means in any given case. With the prospect of some states enacting a
presumption favoring the birth mother in surrogacy cases271 and a wide-
open best interests rule emerging in others,272 however, choice of law
may acquire new significance in such custody litigation. Further, such
litigation often raises additional, related issues likely to prompt choice-
ot
of-law analysis, including the validity of the contract's terms.

To the extent such questions arise, the thorough examination of
how courts might choose the applicable law in surrogacy-based adop-
tion proceedings applies with only slight alteration to custody pro-
tn
ceedings. As in the adoption context, the determinative variables re-

main the connections a particular case has with various jurisdictions,
the substantive rules these jurisdictions apply to surrogacy-based cus-
tody disputes, the nature and scope of the policies underlying these
rin

270. The other connections in all of the scenarios would remain significant, however,
if the court also sought to resolve contractual and related claims. See supra note 52 and
accompanying text.
271. See N.J. Bioethics Comm'n, supra note 2, at 342 (Policy Recommendation no.
rep
5); N.J. Bioethics Comm'n, supra note 260, at 20-29; M. FIELD, supra note I, at 144 (rec-
ommending announcement of such rules).
272. See, e.g., MicH. CoMP. LAws ANN. § 722.861 (West Supp. 1989) (in custody
disputes arising out of surrogate parentage contracts, court shall award custody "based on a
determination of the best interests of the child," as otherwise defined in Michigan statutes).
d
we
substantive rules, and the approach to choice of law followed by the
custody forum. 273 In other words, with one very important exception,
each prediction that the more hospitable state would apply its law to
a particular scenario under a particular choice-of-law theory would hold
equally true here; similarly, the circumstances calling for an application
ie
of the restrictive state's law by the more hospitable forum would yield
the same prediction.
The important exception is this: From the initial assumption that
ev
all parties would seek to evade the restrictive state's anti-surrogacy rules
followed the conclusion that all adoption petitions would be filed in
the more hospitable state. 274 But custody disputes present other pos-
sibilities, as might the availability in the restrictive state of civil rem-
edies designed to deter surrogacy arrangements. 275 The surrogate who
rr
regrets her promise might initiate litigation in the restrictive state, seek-
ing an invalidation of the contract and a custody award. As a result,
each of the four hypothetical scenarios might now unfold as custody
litigation in the restrictive state.
Under these circumstances, the restrictive state's approach to
e
choice oflaw becomes as important for the outcome as the substantive
laws of the state. For example, in New Jersey, one state moving toward
pe
substantial restrictions on surrogacy and cognizant of the conflict-of-
laws issues likely to result from such legislative action, 276 courts decide
choice-of-law questions according to Currie's interest analysis, 277 a the-
ory with an explicit bias in favor of the forum's own law. 278 Under
this theory, New Jersey courts should use New Jersey law to resolve
any issue to which the application of such laws will advance a New
Jersey interest or policy. 279 New Jersey will have considerably more
ot
control, then, over litigation filed in its own courts, particularly if the
legislature has identified the policies underlying New Jersey's anti-sur-
rogacy laws clearly and expansively.
Once a court, either in the more hospitable state or in the restrictive
tn
state, has chosen the governing law, applied it to the facts, and resolved
the issues before it, it will issue a custody decree. It may also hand
down a judgment on the related issues before it, such as the contractual
claims. Once the parties have exhausted their appeals, the judgment
on the contractual issues will become final; full faith and credit com-
rin
273. See, e.g., supra notes 143-55 and accompanying text.

27 4. See supra text accompanying note 29. Why would the adoptive couple practicing
evasion petition for adoption in the restrictive state? And certainly if the surrogate wished
to repudiate the agreement, she would not initiate adoption proceedings in favor of the semen-
provider and his wife.
ep

276. See supra note •.
278. See supra text at note 102.
279. See supra text at notes 104-05.
Pr
ed
mands that all sister states respect this finality. 280 But a custody decree
is never final, and a court may modify it when the welfare of the child
iew
so requires. Indeed, it is precisely this modifiability that requires special
jurisdictional rules for custody adjudications that do not necessarily
apply to adoption proceedings. 281
Because custody proceedings under the UCCJA do not produce
final decrees immune from revision by a sister state, the drafters un-
dertook special efforts to address questions of modification, recognition
rev
and enforcement. 282 The UCCJA relies on comity to provide that courts
"shall recognize and enforce an initial or modification decree of a court
of another state which had assumed jurisdiction under statutory pro-
visions substantially in accordance with this Act. " 283 Perhaps more
significantly, the UCCJA also provides that a court can modify a cus-
tody decree rendered in another state only if that rendering state no
longer satisfies the requirements for jurisdiction substantially in ac-
er
cordance with the Act and the court seeking to modify sits in a state
that now has jurisdiction.284 As case law and commentators have ob-
served, however, jurisdictional competitions producing conflicting de-
cisions and "seize-and-run" behavior can persist despite these provi-
pe
sions. Because the state seeking to modify the earlier custody decree
must determine not only whether it has jurisdiction, but also whether
the initial rendering state has lost jurisdiction, it might reach a con-
clusion with which the initial rendering state might disagree.285
To illustrate, suppose that in any one of the four scenarios de-
veloped earlier the court of the more hospitable state failed or refused
ot
280. See supra note 19 and accompanying text. If applicable, a convention with the
United Kingdom would compel similar results. See supra note 66.
282. See Bodenheimer, supra note 251, at 1218-20; Bruch, Intestate Child Custody
tn
Law and Eicke: A Reply to Professor Coombs, 16 FAM. L.Q. 277, 278 (1982).
283. UNJF. CHILD CusTODY JuRISDICTION ACT §13, 9 U.L.A. pt. I, at 276 (1988).
See Bodenheimer, supra note 251, at 1235 ("Whether demanded by full faith and credit or
not, the states may recognize and enforce the custody decrees of other states, and they may
do so by the enactment of this uniform law").
284. The UCCJA states:
rin
§ 14. [Modification of Custody Decree of Another State]

(a) If a court of another state has made a custody decree, a court of this State
shall not modify that decree unless (1) it appears to the court of this State that the
court which rendered the decree does not now have jurisdiction under jurisdictional
prerequisites substantially in accordance with this Act or has declined to assume
jurisdiction to modify the decree and (2) the court of this State has jurisdiction.
(b) If a court of this State is authorized under subsection (a) and section 8 to
rep
modify a custody decree of another state it shall give due consideration to the
transcript of the record and other documents of all previous proceedings submitted
to it in accordance with section 22.
UNIF. CHILD CUSTODY JURISDICTION ACT, 9 U.L.A. pt. I, at 292 (1988).
285. See J. AREEN, supra note 239, at 567-69.
ed
to decree an adoption but did resolve the issues of custody and visit-
ation, say, in favor of the adoptive couple. Suppose that it did so having
iew
invoked its jurisdiction as the child's "home state" under the
UCCJA. 286 The requisite connections are easy to imagine in both the
third and fourth hypothetical cases (in which the surrogate and the
adoptive couple, respectively, are domiciled in the more hospitable
state), but they could also occur in the other two scenarios, even though
all parties have domiciles in the restrictive state. 287 Suppose that the
rev
surrogate later seeks a modification of that decree in the restrictive
state, a forum she predicts will look more favorably on her claim for
primary custody of the child.
Under the UCCJA, in seeking to modify the more hospitable
state's custody decree, the court in the restrictive state must find both
that it now has jurisdiction and that the more hospitable state no longer
does. Nothing in the statute, however, requires the more hospitable
state and the restrictive state to reach the same conclusion about
er
whether the more hospitable state has lost jurisdiction over the case,
and in fact each may decide that it has the authority to modify. Whether
or not the court in the restrictive state would in fact modify the earlier
decree if it had jurisdiction to do so depends upon this state's sub-
pe
stantive standards for modification; the point is that the two different
states might reach conflicting decisions despite the UCCJA.
Although the PKPA288 was designed to solve the same difficulties
as the UCCJA, it offers a better solution to the modification problem
illustrated above. This federal statute, which applies to all custody dis-
putes whether or not a parental kidnapping has occurred, was enacted
ot
pursuant to Congress' authority to implement the full faith and credit

clause of article IV of the Constitution. The PKPA states that "[t]he
appropriate authorities of every state shall enforce according to its
terms, and shall not modify except as provided ... any child custody
tn
determination made consistently with the provisions of this section by

a court of another State. " 289 In other words, this law imposes federal
duties of enforcement and nonmodification on all states with respect
to any sister-state custody decree issued in accordance with the
PKPA.29o
rin
A decree meets such requirements, and thus triggers these federal

286. See supra text accompanying note 255.
287. The UCCJA focuses on certain connections of the child with the forum, con-
nections that may obtain even in the absence of the domicile of one of the adult parties. See
supra note 138.
ep
288. 28 U.S.C. § l738A (1988).

289. Id.
290. See New Mexico ex rei. Valles v. Brown, 97 N.M. 327, 639 P.2d 1181 (1981);
Coombs, Interstate Child Custody: Jurisdiction, Recognition, and Enforcement, 66 MINN. L.
REV. 711, 820 (1982).
Pr
ed
duties, only if the court issuing the decree has jurisdiction under the
law of the state in which it sits and also meets any one of five listed
iew
conditions, most of which substantially parallel the jurisdictional bases
spelled out in the UCCJA. The jurisdictional bases are: (1) the child's
"home state," (2) best interests as the result of a significant connection
with the child and a contestant or the availability of substantial evi-
dence, (3) physical presence plus abandonment or emergency, (4) best
interests plus absence of jurisdiction asserted elsewhere, and (5) con-
tinuing jurisdiction when modification is the issue. 291 Further, the
rev
PKPA's definition of "home state" is virtually identical to that con-
tained in the UCCJA.292
The noticeable similarity of the two statutes has raised questions
about their respective roles in our federal system. 293 Some scholars
have concluded that the federal statute, the PKPA, preempts the field,
leaving no room for state legislation and thus nullifying enactment of
291. The PKPA provides: er
(c) A child custody determination made by a court of a State is consistent with the
provisions of this section only if-
( I) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement
pe
of the proceeding, or (ii) had been the child's home State within six months before
the date of the commencement of the proceeding and the child is absent from such
State because of his removal or retention by a contestant or for other reasons, and
a contestant continues to live in such State;
(B)(i) it appears that no other State would have jurisdiction under subparagraph
(A), and (ii) it is in the best interest of the child that a court of such State assume
jurisdiction because (I) the child and his parents, or the child and at least one
contestant, have a significant connection with such State other than mere physical
ot
presence in such State, and (II) there is available in such State substantial evidence
concerning the child's present or future care, protection, training, and personal re-
lationships;
(C) the child is physically present in such State and (i) the child has been
abandoned, or (ii) it is necessary in an emergency to protect the child because he
tn
has been subjected to or threatened with mistreatment or abuse;

(D)(i) it appears that no other State would have jurisdiction under subparagraph
(A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the
ground that the State whose jurisdiction is in issue is the more appropriate forum
to determine the-custody of the child, and (ii) it is in the best interest of the child
that such court assume jurisdiction; or
rin
(E) the court has continuing jurisdiction pursuant to subsection (d) of this section
[a subsection concerning modification).
28 U.S.C. § 1738A(c)(2) (1988).
292. [H)ome State means the State in which, immediately preceding the
time involved, the child lived with his parents, a parent, or a person acting as parent,
for at least six consecutive months, and in the case of a child less than six months
old, the State in which the child lived from birth with any such persons. Periods of
rep
temporary absence of any such persons are counted as part of the six-month or other
period.
ld. at§ 1738A(b)(4) (1988).
293. See UNIP. CHILD CusTODY JURISDICTION ACT, 9 U.L.A. pt. I, at 118 (1988)
("caveat").
ed
the UCCJA by the states. 294 The better view, however, explains that
the federal law simply recites jurisdictional conditions which, if fulfilled
iew
by a state rendering a custody decree, activate duties on the part of
other states; 295 under this view, no federal preemption has occurred,
and state law on the subject will survive so long as it is not inconsistent
with the federal law. 296
Perhaps more importantly, unlike the UCCJA, which leaves room
for concurrent state jurisdiction,297 the federal law states a clear priority
rev
for jurisdiction in the child's "home state." 298 Only in the absence of
a "home state" do the other bases become available and then only
under the conditions listed. A decree evokes full faith and credit only
if the rendering court followed these rules. 299
As applied to any of the four hypothetical scenarios, if the child
has a "home state," only a court located there could decide custody
consistently with the PKPA in the absence of an emergency. The de-
terminative variables would be where the child had been living in a
er
parent-child relationship, why she is absent if no longer present there,
and whether one of the custody contestants remains there. 300 Only if
the child has no home state can a state assert jurisdiction based on
connections "in the best interest of the child. " 301 A narrow provision
pe
for "emergency jurisdiction" follows, 302 and finally a state can assert
jurisdiction in the interests of the child if no other state will do so. 303
If the child has her home state in the restrictive state, as could well
occur in any of the hypotheticals, only this state could resolve custody
disputes, consistent with the PKPA; if the more hospitable state is the
home state, only its courts can do so.
ot
294. See Foster, Child Custody Jurisdiction: UCCJA and PKPA, 27 N.Y.L. Sea. L.
REV. 297, 335-36 (1981).
295. See Coombs, supra note 290, at 765. But see Bruch, supra note 282, at 278-79.
296. See Coombs, supra note 290, at 826-34.
tn

298. For example, jurisdiction based on the child's "best interest" exists only if "it
appears that no other State would have jurisdiction under subparagraph (A) [the home state
provision]." 28 U.S.C. § 1738A(c)(2XB)(i) (1988); see supra note 291; Bruch, supra note 282,
at 284-85 n.42; Foster, supra note 294, at 301. The "best interest" provision also makes
explicit that the necessary connection requires more than "mere physical presence." See supra
note 291 (part B). Similarly, the other jurisdictional bases require, respectively, an emergency
rin
or the absence of jurisdiction on any other basis. See supra note 291 ; Foster, supra note 294,
at 303.
299. Thus, if a court invoked a concurrent basis of jurisdiction available under the
UCCJA, see supra note 263, it would be unable to reach a custody determination consistent
with the terms of the PKPA and thus entitled to recognition and enforcement. This incon-
sistency creates an area in which the federal statute preempts the state legislation. See supra
ep
note 296 and accompanying text.

300. See supra notes 291 (part A) & 292.
301. See supra note 291 (part B).
302. See id. (part C).
303. See id. (part D).
Pr
ed
If these jurisdictional constraints are followed, other states must

recognize and enforce the rendering state's custody decree. Thus, the
iew
PKPA would compel the restrictive state to recognize and enforce the
more hospitable state's decree if the hospitable state were the home
state and vice versa. If a court of either state issued a custody decree
without following these jurisdictional requirements, however, the other
state could ignore the decree. The restrictive state's ability to apply its
own law to the merits of surrogacy-based custody disputes and to bind
other states to respect such results, then, will usually depend upon the
rev
location of the child's home state. 304
In addition, the federal law specifies an unmistakably narrow basis
for modification jurisdiction. 305 A court may modify a custody decision
by another state's court only if the modifying court has jurisdiction
under the PKPA and the court of the other state no longer has juris-
diction or has declined to exercise jurisdiction. For purposes of the
latter condition, the PKPA states that the jurisdiction of a state that
er
has made a child custody determination consistently with the provi-
sions ofthe PKPA continues so long as that state has jurisdiction under
its own law "and such State remains the residence of the child or of
any contestant. " 306 In other words, under the federal statute, a sister
pe
state cannot modify a custody decision rendered by a court in the
restrictive state so long as the child or any of the contestants continues
to reside there; only a court in the restrictive state has the power to
modify if these conditions exist. Under the same reasoning, the re-
strictive state could not modify a decree of a more permissive sister-
state court if the child or contestant continues to live there.
ot
The statutory framework established by the UCCJA and the PKPA

provides a promising avenue in some cases for the restrictive state's
efforts to limit surrogacy. To summarize and illustrate the application
of these laws: If a surrogate seeking to retain custody of her child files
tn
for a custody decree in the restrictive state before the court of any other
state has issued an adoption decree and if the restrictive state meets
the jurisdictional conditions listed in the statutes, then the restrictive
state can decide the case by applying its own law. For example, if the
rin
304. But if the child has no home state, then one of the other bases would become
available under the conditions specified in each respective subsection. See supra notes 291
&298.
305. The PK.PA provides:
(f) A court of a State may modify a determination of custody of the same child
made by a court of another State, if-
rep
( 1) it has jurisdiction to make such a child custody determination; and

(2) the court of the other State no longer has jurisdiction, or it has
declined to exercise such jurisdiction to modify such determination.
28 U.S.C. § 1738A(f) (1988).
306. 28 U.S.C. § 1738A(d) (1988).
ed
forum is the child's home state, it could use its presumption for the
birth mother or any other applicable anti-surrogacy rule it has en-
iew
acted. 307 Under the PKPA, other states could not modify the restrictive
state's decree as long as this state remains the residence of any of the
contestants or the child. On the other hand, the semen-provider and
his wife might try to evade the restrictive state's law by initiating the
proceedings elsewhere, especially if they reside in a state that has not
enacted a similar anti-surrogacy provision and the child was born or
has lived for a time after her birth in this more permissive state, as in
rev
the fourth hypothetical. A race to the courthouse might well ensue, with
the contestants invoking the UCCJA's provisions on simultaneous pro-
ceedings, inconvenient forum and permission to decline jurisdiction
based on a party's wrongful conduct to resolve the resulting competi-
tion.308
3. DISPUTES OVER CHILD SUPPORT

er
The principles just examined apply to determinations ofvisitation
as well as custody. Litigation regarding financial support for a child
born pursuant to a disputed surrogacy contract, however, evokes a
pe
completely different analysis. The United States Supreme Court has
recently made clear that adjudications of child support can occur only
in states with personal jurisdiction over the party ordered to pay. 309
That party must therefore initiate the lawsuit, be present in the forum
at the time of service or in some way purposely avail herself of the
benefits of the forum state's laws. 310 Participating in an adoption pro-
ceeding or entering into a surrogacy agreement in a particular state,
ot
say, by soliciting the surrogate or signing the agreement there, would

certainly satisfy this requirement. So, too, would having one's domicile
there. 311
The restrictive state would always be able to satisfy these require-
n
ments for both the surrogate and the adoptive couple in the first and
second hypotheticals and would also have jurisdiction to hear support
claims against the adoptive couple in the third hypothetical. Assuming
nt
their participation in an adoption proceeding (even an unsuccessful

one) in the more hospitable state, moreover, this state would always
have personal jurisdiction over both the adoptive couple and the sur-
rogate. As a result, claims for child support in such cases could be
ri

ep
309. Kulko v. Superior Court, 436 U.S. 84 (1978).

310. See id. See also Burnham v. Superior Court, 110 S. a. 215 (1990)(unsuccessful
constitutional challenge to personal jurisdiction over nonresident defendant served while
temporarily present in forum state for reason unrelated to litigation).
Pr
ed
adjudicated in either state, assuming service within the state or a prop-
iew
erly worded long-arm statute. But the fourth hypothetical could present
jurisdictional problems if the surrogate from the restrictive state filed
suit there against the semen-provider for child support. Contracting in
the more permissive state with a surrogate domiciled in the restrictive
state would not likely give the latter the requisite jurisdictional con-
nection with the semen-provider unless one views hiring a domiciliary
as a purposeful availment of the restrictive state's benefits. 312 Satisfying
rev
the "purposeful availment" requirement on such weak facts is partic-
ularly implausible if a substantial part of the gestation occurs in the
permissive jurisdiction under the protection of its surrogacy-favoring
law. The third hypothetical might present similar jurisdictional prob-
lems in the unlikely event that the adoptive couple tried to bring a
support claim against the surrogate in the restrictive state.
The Uniform Reciprocal Enforcement of Support Act, 313 in force
in some form throughout the United States, 314 provides a vehicle for
er
a parent to seek child support or enforcement of an existing support
award without traveling to another state with personal jurisdiction over
the obligor parent. Under this statute, local officials communicate with
the prosecuting attorney of the obligor's state, who in tum represents
pe
the obligee and prosecutes the case. 315 An explicit choice-of-law clause
in the Act directs application of the "laws of any state where the obligor
was present for the period during which support is sought." 316 In other
words, in a proceeding for child support initiated by the surrogate in
the restrictive state against a semen-provider in a more hospitable state,
the statute directs the court to apply the law of the more hospitable
ot
state. This provision may become especially important if states enact

different rules about support duties owed to children born as the result
of failed surrogacy agreements. 317
tn
312. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985) ("So long as a com-
mercial actor's efforts are 'purposefully directed' toward residents of another State, we have
consistently rejected the notion that an absence of physical contacts can defeat personal
jurisdiction there" [citations omitted]).
313. UNIF. RECIPROCAL ENFORCEMENT OF SUPPORT ACT, 9B U.L.A. 381 (1987).
314. See id. at 381, 553; id. at 36, 61 (Supp. 1990).
rin
315. Id. at 450,461 (1987) (§§ 14, 18).

316. Id. at 423 (§ 7).
317. A state enacting a presumption in favor of the surrogate or birth mother in
custody disputes arising from failed surrogacy agreements might also adopt a rule that, in
cases in which the birth mother or surrogate prevails, the semen-provider has no support
duties. M. FIELD, supra note I, at 148-50 (suggesting this approach for states making surrogacy
contracts unenforceable while not banning the practice). Allowing the surrogate to repudiate
rep
the contract and to keep the child while imposing support duties on the semen-provider
"would create a powerful incentive for some women to enter a surrogacy arrangement with
the real intent of pulling out when the time came to surrender the child." Id. at ISO. See N.J.
Bioethics Comm'n, supra note 260, at 57 (after noting arguments for and against support
liability for semen-provider denied visitation, paper acknowledges possibility of "blackmail"
ed
Finally, because support orders, like custody determinations, are

generally modifiable upon a showing of changed circumstances, 318 a
iew
state remains free to revise an award granted by a sister state. 319 Yet
some authority would both allow a court to issue a nonmodifiable
award-for instance, no child support by the semen-provider for a child
whom the surrogate decides to keep contrary to the agreement-and
entitle such decrees to the same finality in all other states under the
command of the full faith and credit clause. 320 Any contrary policies
rev
of the restrictive state would not alter this result. Nonetheless, modem
federal statutes, including the Child Support Enforcement Amendments
of 1984, 321 may substantially reduce the freedom of all states to de-
termine who will be required to pay support and what mechanisms
will be used to enforce such obligations. 322 In other words, such federal
statutory schemes may limit the policy choices that states enacting
surrogacy laws can make in this area if they wish to continue to par-
ticipate in certain federal assistance programs.
er
Ill. OBSERVATIONS AND SUGGESTIONS
pe
A. Lessons for Restrictive States
A number of important lessons emerge from this analysis. First,
no matter what limitations on surrogacy a restrictive state's legislature
ultimately enacts, individuals seeking a way to avoid such laws will
probably be able to do so, assuming the existence of a jurisdiction
allowing or encouraging surrogacy. This conclusion can be reached with
ot
particular confidence in situations in which all parties cooperate in an

out-of-state adoption proceeding. The scenario in which evasion of a
restrictive state's law might occur most successfully entails a restrictive-
tn
state couple's location of an out-of-state surrogate as well as their ex-

ecution of an out-of-state agreement. 323 The couple might further en-
hance their success in avoiding their domicile's restrictions if they
choose as the adoption forum a more hospitable sister state that decides
that support liability under such circumstances would allow); but see N.J. Bioethics Comm'n,
rin
supra note 2, at 342 (Policy Recommendation no. 6, recommending support obligations for
noncustodial parents, notwithstanding contractual disclaimers); Task Force on Reproductive
Practices, N.J. Bioethics Comm'n, Minutes (June 28, 1989) (discussion of policy recommen-
dations) (on file with the Wisconsin Law Review).
318. See H. CLARK, supra note 33, at 724.
319. See, e.g., Worthley v. Worthley, 44 Cal.2d 465, 283 P. 2d 19 (1955).
ep
320. See Yarborough v. Yarborough, 290 U.S. 202 (1933).

321. 42 U.S.C. §§ 651-67 (1988). See also Family Support Act, 42 U.S.C.A. §§ 666-
667 (West Supp. 1990).
322. See H. CLARK, supra note 33, at 735-39.
323. This is the third hypothetical scenario.
Pr
ed
choice-of-law questions according to the First Restatement, the Second

Restatement, Currie's governmental interest analysis, the center ofgrav-
iew
ity approach, Leflar's choice-influencing considerations, or the lex fori
approach. Virtually every state uses one of these six approaches or
combines several of them. 324
Second, despite such opportunities for evasion, a restrictive state
nonetheless should articulate clearly, precisely and expansively the in-
tended scope ofboth its anti-surrogacy laws and the policies underlying
rev
these laws. In particular, such statutes should identify the specific con-
nections with the restrictive state that will trigger application of this
legislation in multijurisdictional cases, 325 as well as the statutes' goals
and intended beneficiaries. Although such statutory directives cannot
bind other states' courts, the more objectives the restrictive state an-
nounces through its statutes, the better the chances that its law will
apply to a multijurisdictional surrogacy case, particularly under several
of the modem approaches. Thus, if a restrictive state's statutes clearly
er
aim to protect the adoptive couple, the surrogate and the resulting child
and to deter all participation in commercial surrogacy, then this state
will have expressed an interest in having its law apply in any multistate
case in which any of these individuals is domiciled in the state. The
pe
legislation might strengthen this inference by stating explicitly that the
restrictive state's objectives extend beyond the purely domestic ar-
rangement and remain equally pertinent in the multijurisdictional case
involving any domiciliaries of the restrictive state.
A restrictive state's legislation might go further to reveal addi-
tional, even broader policy concerns. For example, the legislation might
ot
reveal concern that commercial surrogacy arrangements, especially

when enforced over the surrogate's objections, undermine the state's
core moral standards and the value society attaches to family units and
to women and children as persons, not commodities. If the legislation
tn
so states, then the restrictive state might well be able to produce the
conclusion that it has an interest in having its rule apply in any case
with which it has any connection. Indeed, this restrictive state might
become a haven for surrogates who, after experiencing a change ofheart,
say, during pregnancy, establish a new domicile there as part of an
rin
effort to obtain an initial custody ruling from a court of this state. In

such cases, the restrictive state might try to apply its law to arrange-
ments that had no previous connection with this state, although such
324. See supra notes 119-24; Kay, supra note 102, at 591-92.
rep
325. The proposed Nevada legislation, supra note 18, indicates the intent to have it
apply at least in any case in which one of the adoptive parents or the surrogate is a resident
of the state. The permissive alternative of the Uniform Status of Children of Assisted Con-
ception Act contains similar language. UNJF. STATUS OF CHILDREN OF ASSISTED CONCEPTION
ACT § 6(a), 9B U.L.A. 94 (Supp. 1990) (Alternative A).
ed
efforts may exceed the constitutional boundaries of permissible choice
iew
of law on some issues. 326
Regardless of the particular policies a legislature decides to adopt,
it ought to state unequivocally that such policies are basic, fundamental,
strong and deeply held. In the manner just suggested, a restrictive state
can eliminate any ambiguity about the purposes underlying its restric-
tions. Such legislative foresight will provide solid guidance for a forum
following any of the modem approaches that rest on policy analysis.
rev
These approaches include governmental interest analysis, with or with-
out consideration of comparative impairment; the Second Restatement;
Leflar's choice-influencing considerations; and Cavers' principles of
preference. Although under any of these approaches the adoption forum
may choose to honor its own policies over those of the restrictive state,
still a clear statement of legislative purpose and scope can only help
the restrictive state in maximizing its laws' effectiveness.
Further, if the restrictive state's own courts follow interest analysis
er
or one of the other modem policy-oriented approaches, 327 the legis-
lature should take special pains to give the local judiciary the tools it
needs to implement such methodologies correctly in cases in which the
restrictive state serves as the forum. Indeed, for this reason alone, the
pe
restrictive state's legislature ought to give both a clear directive about
the precise circumstances under which the state's laws are to apply and
a clear statement of policy. 328 With such legislative guidance, courts in
the restrictive state could not fail to apply local law to all cases in which
the state has an identified interest at stake, particularly under interest
analysis. 329
ot

327. See supra notes 120, 122, 124-25, 151-52 and accompanying text.
328. For example, if New Jersey enacts the anti-surrogacy legislation recommended
by its Bioethics Commission, see N.J. Bioethics Comm'n, supra note 2, at 341-42, it ought
n
to express in such statutes the kind of policy concerns reflected in the Commission's own
deliberations and documents. These include specific concerns about the "harms to the child
born of the arrangement, harms to the so-called 'surrogate', and harms to the social fabric
of society." See Joint Bioethics Comm'nfNew Reproductive Practices Task Force Meeting,
Minutes (July II, 1989) (on file with Wisconsin Law Review).
nt
Such explicit statutory directives would provide precisely the ingredients necessary for
effective use ofinterest analysis or similar policy-based approaches to choice oflaw. If several
jurisdictions were to follow this advice, however, they would likely multiply the incidence
of "true conflicts," see supra note 105 and accompanying text. This eventuality, in tum,
would undermine Currie's assertion that "to assert a conflict between the interests of the
ri
forum and the foreign state is a serious matter," to be avoided whenever the forum can
develop "a more moderate and restrained interpretation both of the policy and of the cir-
cumstances in which [the local interest] must be applied to effectuate the forum's legitimate
ep
purpose." Currie, supra note 148, at 757. Broad and clear statements of legislative policy
might make much more difficult the recommended moderation and restraint. In other words,
alerting legislatures to the need for information that interest analysis currently requires courts
to infer may paradoxically focus more attention on the most vulnerable aspect of this choice-
of-law methodology. I am indebted to Alexia F. McCaskill, Washington University School
of Law, class of 1990, for sharing this observation in my conflict of laws class, fall, 1989.
Pr
ed
Much of this Article has proceeded on the assumption that the
iew
surrogate mother seeks to evade the restrictive state's limitations as
freely and as eagerly as do the adoptive couple. As the Baby M litigation
so compellingly demonstrates, however, a surrogate may change her
mind at a number of points in the arrangement, 330 even though present
experience with surrogacy makes this the exceptional rather than the
routine case.
If the surrogate reconsiders after the completion of the adoption,
rev
either preconceptual or post-birth, full faith and credit principles would
disallow setting aside a sister state's decree except insofar as the sister
state itself could set aside the adoption. In the interests of finality and
the child's stability, most jurisdictions rarely allow abrogation of adop-
tion. 331 The adoption decree would also mean that the adoptive parents
are entitled to custody. 332 On the other hand, an increasing number of
states have begun to recognize "open adoption," an arrangement that
does not sever all of the child's ties with the natural parents. For ex-
er
ample, natural parents might continue visitation of a child following
the child's adoption by others. 333 If the adoption forum's laws allow
open adoption, then a subsequent proceeding in the restrictive state
might permit visitation by the surrogate notwithstanding the would-be
pe
termination of her parental rights by the adoption forum.
If in a multijurisdictional case the surrogate tries to keep the baby
before the adoption has occurred and the adoptive couple seeks to
enforce the agreement or to win custody, as in Baby M, then the initial
judicial proceeding might occur either in the restrictive state or in the
more hospitable jurisdiction, depending largely upon who initiates suit.
ot
Given their respective goals, the surrogate would try to initiate pro-
ceedings in the restrictive state while the adoptive couple would try to
file in the more hospitable jurisdiction. In such cases, the UCCJA and
tn
the PKPA will guide the analysis. These laws contain provisions for
resolving jurisdictional competition by trying to locate jurisdiction in
the state with the closest connections to the child and the most infor-
mation about her, although that state may not be the restrictive state
in any given case. 334 In other words, the restrictive state's legislature
rin
can do nothing to control how various fact patterns might play them-
330. In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988).

331. See H. CLARK, supra note 33, at 934-38. But the Nevada proposal and the
permissive alternative of the Uniform Status of Children of Assisted Conception Act allow
the surrogate to change her mind after the judicial proceeding for 180 days following the last
rep
insemination. UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT§ 7, 9B U.L.A.

96-97 (Supp. 1990) (Alternative A). See supra note 128.
332. See H. Clark, supra note 33, at 928. But see notes 74-77 and accompanying text.
333. See H. CLARK, supra note 33, at 929.
334. See supra notes 241-308 and accompanying text. See also International Child
Abduction Remedies Act, 42 U.S.C.A. §§ 11601-11606 (West Pamphlet 1990) (implementing
the Hague Convention on Civil Aspects of International Child Abduction).
ed
selves out within the terms of these statutes, unless the restrictive state
iew
seeks to exempt surrogacy disputes from these statutes altogether-a
very risky approach given the interstate chaos that prompted their
enactment initially.
All of the foregoing suggestions about what legislatures and courts
may or may not do contemplate some sort of civil proceeding, a con-
sensual or nonconsensual adoption, litigation to enforce or invalidate
the agreement, or a custody dispute. A restrictive state may also wish
rev
to criminalize some surrogacy-related activities, for example, the con-
duct of the broker or that of the adoptive couple or surrogate. Criminal
statutes can convey a powerful message about the strength of a restric-
tive state's anti-surrogacy policies and can certainly apply to cases in
which the prohibited conduct occurs within the state. Whether this
state can reach exclusively out-of-state conduct affecting its local anti-
surrogacy policies remains unsettled, however. A restrictive state may
wish to experiment with this unusual and quite possibly problematic
approach. 335
er
Against this background, a restrictive state must recognize the lim-
its on its ability to regulate surrogacy effectively, consistently and com-
prehensively. With so many of the "shots" called by the parties them-
pe
selves and by other jurisdictions, all of whose purposes may explicitly
contravene the local legislature's aims, simple restrictions 336 will leave
a large number of surrogacy cases connected with a restrictive state
outside its grasp.
Creative solutions increasing the risks of surrogacy may hold more
promise. Suppose, for example, a restrictive state created a non-waiv-
ot
able cause of action for damages for emotional distress for the surrogate
and suppose she could sue the broker, the semen-provider and his wife
at any time. 337 This remedy would not require initiation or partici-
pation by a third party, such as a state social services department, from
n
whom the willing parties to a prohibited surrogacy arrangement might

keep their activities a secret. As the adoptive couple and broker must
realize, the surrogate, of course, always knows of the agreement. Sim-
ilarly, allowing the surrogate to sue and recover would not undermine
nt
the full faith and credit that the restrictive state owes to a sister state's
adoption decree in the event the surrogacy arrangement had culminated
335. See supra notes 197-207 and accompanying text. Twenty-nine states have sta-
ri
tutory authority to enact such laws under a provision of the Model Penal Code that they
have followed. See supra text accompanying note 197. The validity of exercising such statutory
authority in this way, however, remains unclear.
ep
336. These might include custody presumptions favoring the birth mother. See, e.g.,
M. FJELD, supra note 1, at 126-44.
337. In other words, suppose no statute of limitations circumscribed her ability to
sue. I am indebted to Sandra H. Johnson, Professor of Law and Director, Center for Health
Law Studies, St. Louis University, for suggesting this cause of action.
Pr
ed
in such decree; a court in the restrictive state would not question the
iew
adoption but would simply provide a remedy in tort. This remedy,
moreover, would involve directly only the parties to the agreement,
without risking a change in placement or familial status for the child,
whom the restrictive state would not want to "punish" for his parents'
actions. Finally, the prospect of such lawsuits might successfully deter
couples seeking a child through these means; this prospect would expose
them to a continuing risk, for no matter how trustworthy the surrogate
rev
might seem at the time of the adoption, no one knows whether she will
seek this relief in the years to come-particularly if this remedy would
provide financial recovery but would not require her to seek custody
of a child whom she never intended to rear. If the restrictive state
articulated both compensatory policies (aimed at the surrogate) and
deterrent policies (aimed at the adoptive couple and the broker) in
enacting such legislation, then a local court following interest analysis
or another policy-oriented approach could apply this law to a case with
er
virtually any connection with the restrictive state at the time of the
agreement or the relinquishment and adoption, regardless of where
those particular events took place.
On the other hand, however, even this suggestion poses policy
pe
problems. Might it encourage the adoptive couple (together with the
child) to "disappear" or "go underground" so that the surrogate can
no longer find them? Would that compromise the child's well-being?
And does it unfairly, and perhaps discriminatorily, portray the semen-
provider as the tortfeasor and the surrogate as the victim although both
willingly entered the same agreement?
ot
B. A National Perspective
tn
The problems presented by state-by-state efforts to take a politi-

cally acceptable stand on the difficult policy choices posed by surrogacy
are not unique to this relatively contemporary arrangement. The era
of prevalent migratory divorce, as well as the past (and perhaps re-
turning) days of out-of-state abortions, 338 similarly show the ineffi-
rin
ciency, confusion and unfairness resulting from varying legislative

schemes and goals. Our federal system encourages state-by-state ex-
perimentation on policy matterss, particularly those concerning do-
mestic relations. 339 One price of our federal system is the quest by those
338. Cf. Webster v. Reproductive Health Servs., 109 S. a. 3040 (1989) (divided
rep
Court apparently invites states to adopt more stringent abortion restrictions if they wish).
339. See, e.g., Williams v. North Carolina, 325 U.S. 226, 231, 232, 233, 238 (1945).
See also Cruzan v. Missouri Dep't of Health, 110 S. a. 2841, 2859 (1990) (O'Connor, J.,
concurring) ("the more challenging task of crafting appropriate procedures for safeguarding
incompetents' liberty interests is entrusted to the 'laboratory' of the States" ).
ed
with the financial, emotional and legal resources 340 for out-of-state ful-
fillment of their personal choices341 • Another price is the very real
iew
likelihood that some states might exploit this phenomenon to attract
from elsewhere those seeking results obtainable from these more per-
missive legal regimes. 342
Previous experience reveals several possible antidotes or alterna-
tives. First, the federal judiciary could bring consistency and order to
a state-by-state patchwork of surrogacy laws by articulating the con-
stitutional outer limits of such restrictions, as the Supreme Court did
rev
for abortion in Roe v. W ade3 43 and its successors. Yet Roe remains
wildly controversial even almost twenty years after its announcement,
in no small part because of the way in which the Court allegedly usurped
the legislative function 344 and allegedly broadened the Constitution to
do so. 345
Some have also criticized the Court in Roe for intervening too
soon, because a few states had begun to liberalize their abortion laws
on their own. 346 Whether or not one concludes that this criticism fairly
er
attacks Roe, which was decided against a background of more than a
century of criminal abortion laws, 347 resolution of the surrogacy debate
would evoke this criticism even more compellingly; state legislatures
are just now undertaking for the first time efforts to address surro-
pe
gacy. 348 Federal judicial intervention years hence might meet this par-
ticular facet of the argument without obviating the broader claim that
surrogacy is a matter of state legislative policy, not constitutional right.
340. As currently practiced, surrogacy arrangements require considerable financial
resources anyhow. See, e.g., M. FIELD, supra note I, at 25. Developing a successful scheme
of evasion obviously requires obtaining the necessary legal advice.
ot
341. The Supreme Court's recent decision in Cruzan, 110 S. Ct. 2841, rejecting the
constitutional challenge of parents to state action disallowing the withdrawal of artificial
nutrition and hydration from their daughter who is in a persistent vegetative state, offers a
telling example of how our federalism prompts individuals to seek to exercise elsewhere
important personal choices frustrated at home. "Nancy Cruzan's family will consider moving
tn
her to another state in a bid to disconnect the feeding tube that is keeping the young woman
alive, the family's attorney said (on the day the Supreme Court announced its decision]."
Mosley & Young, Family May Move Daughter to Another State, Lawyer Says, St. Louis Post-
Dispatch, June 26, 1990, at I, col. 2. See Wolff, Living Will? How About a Moving Will?, St.
Louis Post-Dispatch, July 1, 1990, at 3B, col. 2 (suggesting Missourians request, while com-
petent, a move to another state in the event of incompetence).
rin
342. See, e.g., M. RHEINSTEIN, supra note 47, at 76-77.

343. 410 u.s. 113 (1973).
344. See, e.g., Ely, The Wages of Crying Wolf A Comment on Roe v. Wade, 82 YALE
L.J. 920 (1973).
345. See Roe, 410 U.S. at 172-77 (Rehnquist, J., dissenting).
346. See Appleton, supra note 9, at 4. See also Morgan, Roe v. Wade and the Lesson
ofthe Pre-Roe Case Law, 77 MICH. L. REv. 1724 (1979) (Supreme Court should have waited
ep
to decide issue presented in Roe until lower courts had had more opportunities to analyze
the question).
347. See J. MOHR, ABORTION IN AMERICA: THE ORIGINS AND EVOLUTION OP NA-
TIONAL Poucv, 1800-1900 (1978); Appleton, supra note 9, at 2-4.
Pr
ed
Although scholars defending Roe can assert plausibly, if not persu-

asively, that the Supreme Court was simply expressing a national con-
iew
sensus about abortion laws, 349 one could not presently attempt to make
a similar case for a constitutional resolution of the surrogacy contro-
versy, given the widely diverging views on the subject even within
identifiable interest groups. 350
The evolution of modem divorce law illustrates a second way in
which consistency can follow a period of disharmony and evasion.
rev
During the years when virtually every American jurisdiction would
dissolve a marriage only after the petitioning spouse had established
the marital fault of the other, individuals, or couples, frustrated by this
highly artificial and often dishonest system often traveled to jurisdic-
tions, including foreign countries, with the least restrictive versions of
the "fault" regime 351 or with alternative understandings of marriage
breakdown. 352 Yet the prevalence of migratory divorce must have made
even the most restrictive states receptive to law reform. After California
er
enacted the first no-fault statute in 1969353 and the Commissioners on
Uniform State Laws contemporaneously approved a variation on the
same theme, 354 all the states adopted some sort of no-fault provision
within a relatively brieftime. 355 Reinforced by intimations that divorce
pe
·laws might evoke special constitutional guarantees, 356 no-fault schemes
now provide a common denominator among the jurisdictions, and one
hears little about migratory divorce resulting solely from efforts to
evade the law of the domicile. 357
349. E.g., Perry, Abortion, the Public Morals, and the Police Power: The Ethical
ot
Function of Substantive Due Process, 23 U.C.L.A. L. REv. 689 (1976).

350. See, e.g., L. ANDREWS, supra note 2, at 158-61 (division among feminists). Cf
Bowers v. Hardwick, 478 U.S. 186 (1986) (majority of Court refuses to include in right to
privacy freedom of consenting adults to engage in homosexual sodomy); Richards, Consti-
tutional Legitimacy and Constitutional Privacy, N.Y.U .L. REv. 800, 851-52 ( 1986) (reasoning
tn
in Hardwick might rest on lack of majority consensus).

351. SeeM. RHEINSTEIN, supra note 47, at 76 (referring to Nevada, Aorida, Idaho
and Arkansas).
352. See, e.g., Shearer v. Shearer, 356 F.2d 391 (3d Cir. 1965), cert. denied, 384 U.S.
940 (1966) (describing but misapplying Virgin Islands Jaw granting divorces for incompati-
bility of temperament). This territory attracted numerous out-of-staters. See Alton v. Alton,
rin
207 F.2d 667 (3d Cir. 1953), vacated as moot, 347 U.S. 610 (1954); M. RHEINSTBIN, supra
note 47, at 77-78.
353. SeeM. RHEINSTEIN, supra note 47, at 367-82. This Jaw now appears in CAL.
CIV. CODE§§ 4506-08. (West 1983).
354. SeeM. RHBINSTBIN, supra note 47, at 382-91. The pertinent provision of this
law is section 302 of the UNJF. MAluuAOE AND DIVORCE ACT, 9A U.L.A. 181 (1987).
355. See J. AREEN, supra note 239, at 267. South Dakota was the last to follow the
rep
trend, acting in 1985. See Kay, Beyond No Fault: New Directions in DIVORCE REFORM AT
THE CRossROADs (S. Sugarman & H. Kay eds. 1991) (forthcoming).
356. See, e.g., Garfield, supra note 41, at 519; Karst, The Freedom of Intimate As-
sociation, 89 YALE L.J. 624,671-72 (1980).
357. Migratory divorce still occurs, however, thanks to the ease of travel and to the
ed
If one can generalize from the divorce experience, perhaps the
iew
confusion and evasion likely to result from varying state efforts to
respond to surrogacy will eventually help prod lawmakers to reach some
sort of national consensus. As with divorce legislation, arguments pur-
portedly based on the Constitution-whether accepted by the courts or
not-might help shape the consensus. 358 In the divorce arena, these
forces led to the widespread adoption of no-fault laws, the lowest, or
least restrictive, common denominator.359 Though the sharp division
rev
of opinions on surrogacy even among those usually called "liberals" 360
makes such predictions a risky venture, the least restrictive approach
to surrogacy may also prevail following the period of conflicting local
laws.
Alternatively, surrogacy may call for the same kind of far-reaching
legislative response that now controls multistate custody disputes. As
that field shows, a uniform act proposed for adoption by each state can
go far toward solving the problems but only if all states enact identical
er
provisions. 361 So-called "uniform" acts offering enacting states both
restrictive and permissive altematives362 will instead perpetuate and
multiply the conflict-of-law difficulties. Further, the real prospect of
states' or countries' seeking to become surrogacy "mills" requires more
pe
than standardized statutes that legislatures may or may not choose to
enact.
Continuing the analogy, then, federal legislation modeled on state
law or modeled on a uniform act could bring order to multijurisdic-
tional surrogacy litigation just as Congress' enactment of the PKPA363
has begun to bring order to interstate custody litigation. In fact, this
ot
approach might provide the most promising avenue for achieving uni-
formity without simply adopting one of the least restrictive positions
on surrogacy.364
tn
way that modern life often calls individuals away from home. E.g. , In reMarriage of Rin-
derknecht, 174 Ind. App. 382, 367 N.E.2d 1128 ( 1977). See Garfield, supra note 41, at 504
("The problem today is not so much migratory divorce as migratory people.").
358. Courts have considered these arguments. See, e.g., In re Baby M, 109 N.J. 396,
447-57, 537 A.2d 1227, 1253-55 (1988).
359. Although all states now offer some no-fault ground for dissolving a marriage,
rin
their laws differ. Some have enacted "pure" no-fault measures, e.g. CAL. C1v. CoDE§§ 4506-
4508 (West 1983); others have fused fault and no-fault systems, e.g., Mo. ANN. STAT. §§
453.305, 453.320 (Vernon 1986); and still others have simply added no-fault grounds to a
list of fault grounds, e.g., N.Y. DoM. REL. LAw§ 170 (McKinney 1988).
360. See L . ANDREWS, supra note 2, at 158-61.
361. See supra notes 241-57 and accompanying text (analyzing UCCJA).
362. See supra note 6 and accompanying text (Uniform Status of Children of Assisted
ep
Conception Act).
363. See supra notes 288-306 and accompanying text (analyzing PKPA).
364. The approaches illustrated by the Supreme Court's decision in Roe v. Wade and
the evolution of modern divorce law would likely yield uniformly permissive laws on sur-
rogacy within the several states. Depending on its view on the merits of surrogacy, Congress
Pr
ed
Examples of proposed federal legislation include the Surrogacy

Arrangements Act of 1989, 365 which would criminalize participation
iew
in commercial surrogacy arrangements; the Anti-Surrogate-Mother Act
of 1989, 366 which would criminalize, inter alia, "procur[ing] any woman
to engage in surrogate motherhood," providing medical assistance in
carrying out a surrogacy agreement, and "sell[ing] for a profit the right
to adopt a child;" and the Commercialized Childbearing Prevention
Act of 1989, 367 which would make unenforceable in any state or federal
rev
court commercial surrogacy agreements and would criminalize the bro-
kering of such agreements. Only the last of these bills appears to address
the adoption proceedings that present the greatest threat to surrogacy
regulation, yet even it fails to go far enough, given its anti-surrogacy
aim. The proposal does not state how courts should decide custody
disputes growing out of surrogacy agreements. Nor does it provide a
disincentive for informal consensual custody agreements, which, once
undertaken, may continue even after court intervention, thanks to the
er
"continuity-of-care" principle. 368 Regardless of the merits of any par-
ticular efforts to produce a uniform or federal response to surrogacy,
however, they do presage a more effective solution than any individual
state can hope to achieve through its own regulatory scheme. Like the
pe
possibility of intervention by the federal courts or the evolution of more
harmonious regimes among the states, however, a call for federal leg-
islation assumes the development of a broad consensus on surrogacy-
a consensus that neither now exists nor lends itself to comfortable
prediction during this period of intense debate and very early legislative
efforts.
ot
IV. CONCLUSION
As states begin to respond to the difficult policy choices posed by

tn
the use of surrogacy arrangements, they must recognize that their efforts
do not occur in isolation. Given the absence of any real consensus on
the subject, each jurisdiction, including all fifty states within this coun-
try, may adopt a very different approach to surrogacy. The range of
possibilities includes outright restrictions on surrogacy, such as crim-
rin
inal prohibitions and judicial refusals to issue the adoption decree or-
dinarily contemplated in surrogacy arrangements, as well as laws ere-
might legislate under the commerce clause or its authority to implement the fourteenth, or
even the thirteenth, amendment. See, e.g., L. TRIBE, supra note 190, at 312, 330-50.
365. H.R. 275, !Oist Cong., 1st Sess. (1989)(introduced by Thomas Luken, D·Ohio).
rep
366. H.R. 576, !Oist Cong., 1st Sess. ( 1989) (introduced by Robert Dornan, R-Cal.).
This proposal covers prohibited conduct by American citizens outside this country. See supra
note 203 and accompanying text.
367. H.R. 1188, IOist Cong., 1st Sess. (1989) (introducted by Barbara Boxer, D-Cal.).
ed
ating a much more hospitable environment, such as measures assisting
iew
courts in recognizing the new family unit agreed upon by the parties.
Wherever enacted, these contrasting legal regimes will affect surrogacy
arrangements in which all parties wish to abide by their agreements as
well as those in which litigation follows a party's breach.
Although the predicted diversity of responses to surrogacy pro-
duces precisely the kind of local experimentation encouraged by our
federal system, this same diversity will tempt affected individuals to
rev
resort to the evasion tactics previously practiced by those seeking out-
of-state abortions, migratory divorces and interstate child custody ad-
judications. In turn, however, such conduct may hasten the formation
of a national consensus on this currently divisive subject.
er
pe
ot
tn
rin
,'
,'
ep
Pr

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Surrogacy Arrangements and the Conflict of Laws

Susan Frelich Appleton

SUSAN FRELICH APPLETON*

A number of my colleagues at Washington University School of Law helped me by

Consistent with this hypothesis, any state seeking to restrict sur-

In a "worst-case scenario," from the perspective of a restrictive

obtain a judicial decree of adoption in a more hospitable jurisdiction.

and a jurisdiction with laws more hospitable to those seeking to par-

ticipate in surrogacy arrangements-in reality a surrogacy arrangement

when, by hypothesis, collperating parties have sought to avoid local

state conduct of individuals seeking to avoid local law.

restricting abortion, mid-twentieth century statistics document the ineffectiveness of such

adoptions, sometimes the consensual relationship breaks down. In

a state that, on its own, has decided to restrict the practice.

understood to entail consensual adoption. 16 Indeed, despite the wide-

uals trying to avoid a restrictive state's surrogacy limitations will seek

as the lower court did in Baby M. 23 Because a nonconsensual adoption

decree is a judicial decree nonetheless, the effect in the restrictive state

A. Surrogacy Arrangements Concluded by Adoption Proceedings

For the first hypothetical, assume that a state enacts substantive

24. In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988).

Restrictive More Hospitable

domicile of surrogate child reliquished for adoption

agreements, commercial or otherwise. 27 In this event, local parties in-

(Vernon 1983 & Supp. 1989) (list of complementary laws).

guardian in the receiving state.

OF CHILDREN OF AssiSTED CONCEPTION ACT§ 6 98 U.L.A. 94 (Supp 1990) (Alternative A).

Despite the elusive and elastic quality of any domicile require-

43. 28 U.S.C. § 1738A (1988).

52. Adjudications of the contractual claims, as distinguished from adjudications of

courts in "civil law" countries invoke such expansive adoption juris-

( 1) The arguments for required recognition of the out-of-state

First, in a subsequent proceeding in a court of the restrictive state

55. E. ScoLBS & P. HAY, supra note 20, at 545.

standards and constitutional protections required for terminations of

parental rights. 68 The surrogate could then challenge the jurisdiction

does not confer adoption jurisdiction and that sister-state recognition

proceedings, appears later in the analysis.

its own ex parte divorces).

plausible, approach consistent with concerns for finality and stability

Finally, a third and ultimately most troublesome consequence for

The adoption may be "good enough" to survive in the restrictive state

A.2d 1227, 1257 (1988).

the decree in an American court. 81 By analogy, a surrogacy arrangement

crimination against out-of-staters, 85 both the analogy to divorce

jurisdiction86 and modern choice-of-law notions 87 support the reason-

supra note 3, at 445.

in a more specific choice-of-law clause, detailing a reference to a particular body of the

Restrictive More Hospitable

cree-and the effect of the adoption decree in the restrictive state. 92

,consider adoption a transitory proceeding and then squarely confronts

89. See supra notes 47-48 and accompanying text.

98. See supra note 30 and accompanying text.

and enforce the bargain. Likewise, if the surrogate experiences second

request application ofthe restrictive state's law. The likelihood of such

laws to invalidate contract). .

such policies enhance the restrictive state's "interests" in having its

a "mill" that attracts surrogacy arrangements involving out-of-staters,

forum would confront a "true conflict" to which interest analysis would

conclusion after emphasizing the contractual features of the case and

107. REsTATEMENT (SECOND) OP CONFLICT OP LAws§ 187 (1971).

apparently center the particular surrogacy arrangement in the forum