Can There Be Tort Liability For Surrogate Mothers Who Breach Surrogacy Contracts?























Legal Issues of the 21st Century

May 6, 2001

Christie Branson

Seminar Paper

                                                                                                May 4, 2001


Dear Ms. Buffay,

This letter is in response to your appointment with me a couple of weeks ago regarding the surrogacy contract you executed.  I have done some research and have evaluated your situation.  Below are the facts as you described to me. If there are any discrepancies, please let me know immediately as the legal conclusion can differ based on a change in the facts. Following a description of the facts is my analysis of your legal dilemmas.  I suggest that after reading and understanding this letter, we should discuss pursuing a cause of action for negligence against your sister in law, Phoebe Buffay.

Client Facts

All parties involved are domiciled and reside in the state of California.  On July, 1, 1997, you executed a surrogacy contract with your husband, Frank Buffay, Jr., (Frank) and Phoebe Buffay (Phoebe), your sister-in-law, to commence a surrogacy relationship. The contract provided, inter alia, that Frank Buffay would provide sperm, and you would provide the egg, to artificially inseminate Phoebe.  Phoebe would carry any resulting pregnancy to term and then terminate any parental rights she may have with the child.  Phoebe had been a surrogate mother in the past, so you assumed there would be no troubles in regard to the relationship.  You and Frank agreed to pay for all of Phoebe’s medical costs and pay Phoebe $50,000 for her services.  The surrogacy contract also included the following clauses:

            VI. Medical Instructions

. . . (B) Embryo carrier will not smoke, drink alcoholic beverages, use illegal drugs, non-prescription medication or prescription medication without approval of the responsible physician. . . .

(D) Embryo carrier will do everything reasonably appropriate for her good health and the good health of the fetus during pregnancy.

(E) Embryo carrier will not engage in any hazardous or inappropriate activity during the pregnancy. . . .

On August 15, 1997, it was realized Phoebe was pregnant and all parties were overjoyed.  The pregnancy was very long and painful.  The responsible physician induced labor on May 30, 1998.  At birth, the child was of extremely low birth weight and had to stay in the hospital for one month to continue to develop.  Physicians were confused as to why the child was in such poor condition.  Phoebe later disclosed that while pregnant, she participated in a rare acupuncture and massage therapy that was supposed to make the pregnancy less burdensome while improving the child’s health.  Phoebe is a professional massage therapist and learned of this procedure over the Internet.  Upon researching these therapies, the doctors learned that the procedures have a chance of slowing the development of the fetus and cause future cognitive development problems.

After leaving the hospital, Phoebe released custody of the child.  Phoebe executed all necessary paper work to release any rights she may have to the child.  You and Frank named the child Stephanie and took her into your home.  Stephanie has had numerous problems with her development.  Her cognitive development is far below normal children the same age.  You have taken her to numerous pediatricians that have found no procedures will help Stephanie. The prognosis is that Stephanie will be in special education her whole life and will have significant problems adapting to society.  You have refused to pay Phoebe the $50,000 and Phoebe has filed suit against you and Frank for breach of contract.

You came to me with concerns about defending the contract cause of action and about filing a counter suit against Phoebe on tort theories. You would also like advice regarding any causes of action Stephanie may have against Phoebe.

Issues Presented

Is the surrogacy contract valid?

If the contract is valid, did Phoebe breach the contract?

Is Phoebe liable for negligence?

What damages are available?

Short Answers

            Under California law, the surrogacy contract is valid.           

In the breach of contract action by Phoebe against you and Frank, it is likely that you are not liable for breach of contract as your non-payment of the $50,000 was justified as a result of Phoebe’s material breach of the contract.

In a cause of action for negligence initiated by you and Frank, it is likely you will win due to Phoebe’s negligent behavior while pregnant.  You will probably only receive pecuniary damages and will have little success in establishing a claim for emotional damages.

In a cause of action for negligence initiated by Stephanie, there are several hurdles that must be overcome, but it is likely that Stephanie will be able to recover some damages under traditional principles of tort law. 


            1.         Is the surrogacy contract valid?

The facts of your case mirror that of Johnson v. Calvert where a married couple supplied the requisite genetic material and another woman agreed to gestate the baby.[1]  The woman was paid $10,000 to compensate her for her services in gestating the fetus and undergoing labor.[2]  She was to relinquish all parental rights to that the child in favor of the couple.[3]  The Supreme Court of California found this contract to be valid and not against public policy.[4] The court stated that this was not an illegal adoption prohibited by Cal. Penal Code section 273 because the contract was for a “gestational surrogacy” and not for the termination of parental rights as to the baby but as a payment for services while gestating the baby.[5]  Therefore, since the facts of your case indicate that you compensated Phoebe primarily for gestating the baby, it would follow that your contract is valid in California. 

It should be noted that In re Baby M involved a New Jersey case where surrogacy contracts were held invalid based on public policy.[6]  In re Baby M can be distinguished for two reasons.  The applicable jurisdiction for resolution of this dispute is California and therefore a case from New Jersey has less authority.[7] Also, the contract in Baby M was a traditional surrogacy contract where the gestational mother was also the biological mother of the child.[8]  Since the facts of your situation differ greatly from this case law, it is likely that your contract with Phoebe is most certainly valid in the state of California.

            2.         Did Phoebe breach the contract?

It is likely that Phoebe did breach the contract when she underwent the acupuncture and massage therapy.  The second restatement of contracts states “when performance of a duty under a contract is due, any non-performance is a breach.”[9]  The term in the contract stated that Phoebe should not perform “any hazardous activity.”  It is likely that the massage and acupuncture could be construed as hazardous to endure while pregnant.  This issue is rather fact sensitive and will require expert testimony from doctors.  But after all the testimony is presented, I feel a jury would find that acupuncture and deep massage on a pregnant woman’s belly is a hazardous activity, making Phoebe in breach of the contract.  While it is clear Phoebe was in breach of the contract, explanation of the type of breach and its consequences is necessary to determine damages available to you and Frank.

A material breach is one that justifies non performance of the other party.[10]  If it can be proven in your defense that Phoebe materially breached the contract, then you were justified in denying her payment of the $50,000.  The question whether a material breach has occurred is fact sensitive.[11]  A breach is less likely to be considered material if it can be paid for in damages.[12]  This breach prevented Phoebe from producing a healthy baby and it is difficult to assess the damages attributed to endangering the creation of a life.  It is likely that the breach is material.  Therefore, you and Frank were justified in not performing the contract and not paying the $50,000 to Phoebe.  As such, Phoebe will probably fail in her breach of contract action against you and Frank.

            3.         Can you obtain emotional damages for Phoebe’s breach?

It is unlikely that you and Frank will be able to obtain emotional damages for the breach committed by Phoebe.  Generally emotional or “mental distress” damages are not available in contract actions.[13]  There are some slim exceptions to this rule when other courts have looked to the nature of the breach and if the conduct was reprehensible or amounting to a tort.[14]  Where parties have been able to recover in tort theory, then their ability to recover emotional damages under a contract is valid.  Also, contracts where the breach has caused bodily harm or the breach of which causes serious emotional disturbance, emotional damages will be allowed.[15] The cases interpreting these rules have varied tremendously and have almost always been overruled or distinguished by later cases.[16]   In Chung, the plaintiffs were allowed to recover emotional damages when a shopping center breached their lease agreement.[17]  This case was later distinguished making it an anomaly in contract law.[18]  While it maybe arguable that there is an action based on contract for emotional damages, it would be prudent to try to obtain emotional damages solely on a tort theory.  But as will be discussed infra, it will be difficult to obtain emotional damages based on tort theory as well.

            3.         Is Phoebe liable for negligence?

To be successful in a cause of action for negligence, a plaintiff must establish the defendant owed a duty to the plaintiff, breach of that duty, and the breach was both the cause in fact and proximate cause of the injuries by preponderance of the evidence.[19]  The plaintiff must also prove damages resulted from the injury.[20]  I will structure the evaluation of a negligence suit brought by you and Frank separately than a suit brought by Stephanie as each cause of action has some legal arguments that must be evaluated separately.

a.         Duty

                        1.         Did Phoebe have a duty to you and Frank?

Duty can be established by contract.[21]  When a person voluntarily under takes an affirmative action to act with reasonable care, it is a duty that cannot be abandoned.[22] Since Phoebe executed and entered into a contract with both you and Frank, there is little question that Phoebe owes a duty to the both of you.

                        2.         Does Stephanie have standing?

Some states have limited the availability of tort law to children when the tort occurred while they were unborn.  Some states do no consider a fetus viable and therefore the resulting child cannot recover for damages.  California differs from this philosophy and has one case on point from 1939.[23]  Scott v. McPheeters was based strictly on interpretation §29 of the California Civil Code (currently §43.1 Cal. Civil code):“A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth.”[24]  The case interpreted “interests” to include a right of action under tort law allowing for a child to recover from the mother’s physician in tort for damages resulting from pregnancy.[25]   The Scott case shows that Stephanie has standing to sue for damages sustained during pregnancy.

                                    3.         Did Phoebe have a duty to Stephanie?[26]

While it is clear in California that Stephanie will have standing, it is quite another consideration to investigate if Phoebe owed a duty to Stephanie.  Under general principals of tort law, a tortfeasor is liable for all foreseeable harm his negligence proximately causes.[27]  It is foreseeable that a mother’s actions could cause harm to her fetus.  Common examples include smoking and drinking alcohol while pregnant.  While common law makes it somewhat clear that there could be a duty owed to Stephanie, there are no California cases on point making it necessary to review how other states have confronted this issue.[28]  

The most recent case regarding this issue is Chenault v.Huie from a Texas appeals court.[29]  The case involved the daughter of a cocaine addict suing her mother for injuries attributed to cocaine addiction while the mother was gestating the daughter.[30]  The court stated that no duty should be imposed on a pregnant women in the care of the fetus.[31]  The court felt that public policy outweighed the need to impose this duty.[32]  Due to the “unique relationship between a mother and her unborn child, and the fact that any and every action taken by a pregnant woman may have some effect on her child’s growth and development, the existence of a risk taken by a mother may never be clear.”[33]  An Illinois Supreme court case decided in the same manner as Chenault by stating that it would be undesirable to establish a uniform standard of conduct for pregnant women.[34]  The court also struggled with the fact that creating a duty would interfere with a woman’s right to control her own life and legal rights.[35]

Conversely, two recent cases in New Hampshire and Michigan recognized that mothers do owe a duty to an unborn child.[36] The Bonte court stated that there is no reason why a woman should be held to the different duty while pregnant than they are subject to while the child is alive.[37]  The court rejected the notion that a bond between a pregnant woman and her fetus deserved different treatment than other relationships.[38]

In all of the above cases the mother was planning to retain her parental rights to the child.  Our situation is quite different as Phoebe had no intention of retaining parental rights when she executed the contract and has thus terminated her parental rights to Stephanie.  As such, it could be argued that imposition of a duty by a “mother” in the strictest sense is not necessary here.  The special circumstances surrounding the “bond” with mother and child is not necessary for review because Phoebe is not genetically related to Stephanie.  Phoebe could very well be considered the same as a third party who would owe a duty to Stephanie.  Under this line of analysis it would be simple to conclude that a duty to Stephanie is warranted by the common law mentioned above that duty be imposed where actions could foreseeably result in harm.  Gestating a fetus makes it foreseeable that harm could occur.  Therefore, it is appropriate to conclude that in narrow cases like that of surrogacy relationships, it would be just to invoke a duty on behalf of the mother to the fetus.[39] 

Another rule of law establishing a duty is when “one who had no duty to do so, takes charge of another who is helpless to adequately aid or protected himself . . . .”[40]  If we observed Phoebe primarily as a third party, it would be clear that she under took the duty to care and protect this helpless fetus by contract.  While a fetus is not a person, the child it becomes is given standing to sue as discussed supra in the Scott case.[41]  This is similar to the liability imposed on an obstetrician performing the necessary examinations on the fetus during pregnancy. [42]  If a physician were negligent in his care of Stephanie’s fetus, Stephanie could successfully sue him as well.  This analogy makes it more clear that Phoebe’s willingness and agreement to gestate the fetus also entitled her with a duty to reasonably care for the fetus.  Due to the negative case law in other states regarding duty of mothers to their own fetuses, this is the strongest argument with which to prove Phoebe had a duty to Stephanie.  I think a court in California would definitely find a duty on behalf of Phoebe simply because the supreme court has an interest in preserving surrogacy contracts.[43]

b.         Standard of Care

Generally, negligence liability only flows where a defendant’s conduct has fallen below the relevant standard of care.[44]  The standard of care in most cases is that of a reasonable person or what “caution as a man of ordinary prudence would observe.”[45]  This case is a little different because we are contemplating two different negligence actions which arose out of a contract.

1.         Standard of Care -- You and Frank v. Phoebe

In the case of you and Frank versus Phoebe, the standard of care was established by the contract.  Phoebe entered into a contract where by she would agree “to do everything reasonably appropriate for her good health and the good health of the fetus during pregnancy.”   Therefore we would establish the standard of care in this situation as requiring Phoebe to do as that of a reasonable pregnant woman in similar circumstances. 

2. Standard of Care – Stephanie v. Phoebe

In the case of Stephanie versus Phoebe, the standard of care could vary greatly based on the existing case law.  As noted supra, the standard of care is objective and that of a reasonable person.  But certain circumstances involve a different standard of care being applied. Given that your situation concerns a special type of relationship involving the gestation of a life, one could argue that there should be a heightened standard of care.  The Chenault court considered that the most appropriate standard of care for a similar case, if allowed, would be that of a reasonable pregnant woman.[46]  This standard of care would take into account that the woman is making decisions as a pregnant woman.[47]   The court posited the questions of “would a woman be forced to endure pain and suffering or even forego critical medical treatment because of potentially adverse effects the treatment may have on her fetus?” and “Should a woman be forced to consider whether a jury would find her decision “reasonable” before she decides to accept or reject treatment?.”[48]  These questions pose some difficult issues to consider. While the facts of the case state that Phoebe chose these massage and acupuncture procedures because she was in extreme pain while pregnant, it might be the case that the choice to undergo treatment would violate a reasonable pregnant woman standard simply because this standard seems to indicate that care of the fetus is the most important.  Phoebe chose not what a reasonable pregnant woman would do, but what a reasonable woman would do.  Note that neither of these standards of care take into account the intentions Phoebe may have had.  While she did think that these procedures would help the child, they are irrelevant.  Ultimately, if a reasonable pregnant woman standard of care is decided by the judge as the appropriate standard, it may cause some very unpredictable results. Inevitably, breach of the standard of care is a fact issue for the jury.  Jurors will apply their own personal views to the facts presented.  This alone could render even having a reasonable pregnant woman standard meaningless.

It could be contended that neither the reasonable person standard nor the reasonable pregnant person standard will be applicable.  The professional standard could be applied where courts defer to the expertise and custom of the profession to determine the standard. [49]  Phoebe’s compliance with the custom of the profession would insulate her from liability.  But Phoebe has some obstacles to overcome. First, the professional standard has traditionally applied to doctors, lawyers, architects, etc who have had advanced specialized training.[50]  In this instance, Phoebe is a massage therapist and the standard might not be applicable to this profession.  The result is also the same as treating Phoebe as a professional surrogate mother.  Being a surrogate mother does not require any specialized training – only a healthy body.  Additionally, the possibility of using the professional standard with regard to massage therapy is removed when we consider that Phoebe was not acting in a professional capacity.  Phoebe was not performing these techniques for a patient and therefore the professional standard is inapplicable here. 

While she was acting in a professional capacity for you and Frank as a surrogate mother, I think a court would have a difficult time using a professional standard for policy reasons.  The court would need to call other surrogate mothers, doctors, etc to establish the requisite standard in the professional community.[51]  Since most surrogacy relationships involve intricate and specialized contracts, it would be hard to generalize a standard for the profession as a whole.  This also relates to the inherent policy that despite the fact that these contracts are valid, they are not mainstream in American society.  The American public is not perfectly comfortable with these arrangements yet. Also, by allowing a professional standard for negligence cases, it might be too much of the judiciary meddling into areas that are not best for judicial input or activism. This might by an issue left best for the legislature when and if they decide to regulate surrogacy contracts.

The most appropriate standard for this case is the reasonable pregnant woman standard whereby we assess if Phoebe’s actions were not in accord with what a reasonable pregnant woman would do in similar circumstances.  I believe the court will chose this standard because it takes into account the physical condition Phoebe was in at the time of the negligence and also reflects the terms of the surrogacy contract 

c.         Breach of the Standard of Care

Having established that in both of the actions, the requisite level of care is that of a reasonable pregnant woman in the same or similar circumstances, the jury (if there is one) will be charged with deciding if Phoebe deviated from this standard by engaging in the massage and acupuncture treatments.  It is likely that we will have Phoebe’s physician to testify on the medical implications of these actions.  Additionally, there are several relevant facts that will serve in our favor.  First, the fact that Phoebe did not disclose her actions until after some time goes to the fact that she may have even known the treatments were unreasonable.  Secondly, the fact that Phoebe has previously been a surrogate mother and is a massage therapist is an indication that she had a lot more knowledge about these techniques and their implications than the average person.  As such, we would expect Phoebe to explore these techniques and their ramifications more than the average person.[52] 

While Phoebe’s profession alone did not establish a professional standard of care, it is enough to realize that Phoebe can be held accountable for her professional knowledge.[53]  In Hill v. Sparks, the court stated that special abilities are relevant in determining if there is a breach from the standard of care.[54] “If the actor has in fact more than the minimum of these qualities, he is required to exercise the superior qualities that he has in a manner reasonable under circumstances.”[55]  It is noted that Phoebe has been a surrogate mother before and this experience has primed her for gauging future pregnancies.  Therefore, Phoebe’s experience with prior pregnancies should be relevant in the exploration of the need or use of bizarre treatments while pregnant.  Also due to the fact that Phoebe has professional experience in massage therapy charges her with the duty to exercise her expertise in appropriate circumstances.  Her experience may have charged her with the duty to research and explore these technologies more than the average pregnant woman.

All of these inquiries are factual and will need to be discovered prior to and during the trial to assess appropriately if Phoebe did breach the requisite standard of care.[56]  But from this brief recount of facts, it would probably be safe to assume Phoebe did breach the standard of care with regard to the acupuncture and massage therapy because the doctor’s research found that these procedures were dangerous.

d.         Was Phoebe’s breach the cause in fact of Stephanie’s injuries?

To be liable in tort law, there must be proof that the defendant’s culpable conduct was the actual cause of the plaintiff’s injury.[57]  The applicable test in this case is the “but-for” analysis.[58]  Where the harm would not “have been sustained even if the actor had not been negligent.”[59]  If it were not for Phoebe’s use of the acupuncture and massage therapies, then Stephanie would not be in her current condition.  This element of determining liability is very straight forward.  It is likely (assuming we meet the breach element above) that we will have no problems establishing that at least the acupuncture and massage were the cause in fact of Stephanie’s injuries.

e.         Was Phoebe’s breach the legal cause of Stephanie’s injuries?

Legal cause is a policy limit on the availability of recovery when there results of a breach are too far attenuated or remote to justify imposing responsibility on the defendant.[60]  The leading test for proximate cause focuses on whether the defendant should have reasonably foreseen that her conduct would cause the consequences suffered by the plaintiff.[61]  With the use of the alternative procedures on a pregnant woman’s belly it is reasonably foreseeable that damage to the fetus could result.  Phoebe may argue that the extent of the damage could not be attributable to her conduct.  But according to the relevant law enunciated in Bigbee v. Pacific Telephone & Telegraph, “foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.”[62] So even though the severe damages might not have been highly probable, it is irrelevant with regard to the liability imposed on Phoebe.  Therefore Phoebe’s actions are probably the legal cause of Stephanie’s damages.

5.         What damages are available?

Personal injury victims can be compensated for medical expenses, lost wages, incidental expenses, and pain and suffering under tort law.[63]  In both of these actions, you and Frank, combined with Stephanie, are seeking damages attributed to the same acts of negligence.  California Cases have confronted this issue in wrongful life cases.[64]  It has been determined that where a parent or a child has recovered damages in a medical malpractice case, a parent or child cannot recover duplicate damages.[65]  Given the way that damages are awarded in cases like these, it is prudent to pursue litigation based on the way the damages are split.

a.         Medical Expenses

With regard to medical expenses, it is likely that you and Frank can prove you will need extensive amounts of money for special schooling, doctor visits, etc., to care for Stephanie up to the age of majority.[66]  Stephanie will need medical expenses to cover her from the age of majority and for the rest of her life.  It is likely that if both of you pursue a cause of action for negligence you will be able to recover medical expenses.

            b.         Diminished earning capacity

Recovering damages of diminished earning capacity due to Phoebe’s negligence is not applicable to the suit in which you and Frank are plaintiffs because your earning capacities were not diminished.[67]  But in the suit where Stephanie is the plaintiff, there are many issues that arise. To recover damages for diminished earning capacity, a plaintiff requires proof of the victim’s specific ability, skills, and aptitude for a career path prior to the injury.[68]  For Stephanie, there is no proof as to what she would have pursued as a career absent the injuries.  It would be very difficult for a court to assess her diminished earning capacity.  There have been some instances where the court relies on limited data like careers and achievements of family members to determine diminished earning capacity for children.[69]  But this approach is very tenuous at best.  It would be difficult to prove that Stephanie, absent Phoebe’s negligence, would aspire to the same or similar careers as that of you and Frank. Therefore, I would predict that the likelihood of obtaining any damages for diminished earning capacity is low due to the lack of proof.

            c.         Incidental Economic Consequences

Incidental economic consequence damages include travel to physicians, and other damages attributable to Phoebe’s negligence.  As long as they can be proven with reasonable certainty, there is no excuse why you, Frank, and Stephanie cannot recover damages for these minor expenses.

            d.         Emotional Damages/Pain and Suffering.

Recovering emotional damages will be difficult for both sets of plaintiffs.  Emotional damages include the mental distress over an injury and cover loss of enjoyment due to that injury. 

                        1.         You and Frank v. Phoebe

Recovery for emotional damages by you and Frank are problematic because you are not the direct victims of Phoebe’s negligence.  Because of Phoebe’s negligence you were deprived of having a healthy baby.  Since the injury caused by Phoebe was not a direct physical injury to you or Frank, you both would need to prove the special duty elements for negligent infliction of emotional distress to obtain emotional damages.[70]

The fact that this situation arose out of a surrogacy contract is of special importance. In most cases concerning prenatal injuries, it is the birth mother of the child trying to recover for the doctor’s negligence in care of the pregnant mother.  Clearly, the injuries caused by this negligence are the result of a direct physical injury to a fetus inside the mother’s womb.  Here the case is different where you and Frank, at the time of the injuries, had no physical or even legal relationship to the child because the child did not even exist. 

Perhaps an action for negligent infliction of emotional distress could be proven, but given that the requirements for emotional damages are based on cases involving bystander accidents, it would be difficult to analogize.  In establishing emotional damages for bystanders, California follows the minority rule in Dillon v. Legg.[71] You and Frank would need to prove that you saw or perceived Phoebe’s negligent actions, you had shock from observance of the accident, and you were closely related to the victim.[72]  Since you were not even aware that Phoebe had incurred the massage and acupuncture treatment until after the pregnancy, it is unlikely that you can recover emotional distress damages.

                        2.         Stephanie v. Phoebe

As mentioned supra, emotional damages can be recovered for loss of enjoyment due to injuries caused by the plaintiff.  One court has held that in order to recover for loss of enjoyment or pain and suffering, the plaintiff must be cognitively aware that they are losing enjoyment of life.[73]  Stephanie will have to prove that she knows that she is losing enjoyment of life due to Phoebe’s behavior.  Because Stephanie has lived her entire life developmentally disabled, it might be difficult to prove that Stephanie realizes she has lost any enjoyment of life. Conversely, Stephanie can prove that she will notice other children her same age as not having the same impairments and therefore will be able to notice that she does not have the full enjoyment of life that other children have.  This is probably the most likely situation to result giving a good chance for Stephanie to recover damages due to pain and suffering.

5.         Punitive Damages

Punitive Damages are to provide both retribution for the defendant’s wrongful conduct and to deter future similar conduct.[74]  Punitive damages are awarded only in cases where the plaintiff has engaged in malice, fraud, or oppression.[75]  It is extremely unlikely that either you or Stephanie will be able to recover against Phoebe for punitive damages as her actions were probably negligent and did not have the requisite malice needed for punitive damages.


While the breach of contract case surrounding these facts is relatively straightforward, these tort cases present a few issues of first impression for California courts.  Since these negligence actions arise out of a surrogacy relationship, concepts of duty of care, standard of care and damages seem to be the biggest obstacles to getting recovery for Stephanie’s injuries.  The facts of your case would be an important test case to see if the ancient theories surrounding negligence can be applied to cases involving relationships formed by current reproductive technologies.  I suggest that you file a counter suit as plaintiffs and as guardians on behalf of Stephanie and sue Phoebe under a theory of negligence.


Christie Branson

Attorney at Law

[1] See 851 P.2d 776 (1993).

[2] Id.

[3] Id.

[4] Id. at 784. 

[5] Id.                                                                                                 

[6] See In re Baby M, 537 A.2d 1227 (1988). 

[7] See id.

[8] See id.

[9] Restatement (Second) of Contracts § 235 (1981).

[10] Farnsworth, Contracts §8.16 (3rd ed. 1999).

[11] See id. 

[12] See Boone v. Eyre, 126 Eng. Rep. 160(a) (K.B. 1777).

[13] See Silva v. Albuquerque Assembly & Distrib. Freeport Warehouse Corp., 738 P.2d 513 (N.M. 1987). 

[14] See Whaley, Douglas, Paying For The Agony: The Recovery Of Emotional Distress Damages In Contract Actions, 26 Suffolk U. L. Rev. 935 (1992).

[15] Restatement (Second) of Contracts § 353 (1981).

[16] See Chung v. Kaohnohi Center Co., 618 P.2d 283 (Haw. 1980).

[17] See id.

[18] See Francis v. Lee Enters., Inc., 971 P.2d 707, 711 (Haw. 1999)

[19] See Diamond, John et al., Understanding Torts § 3.01 (1996).

[20] See id.

[21] Restatement (Third) of Torts § 324A (1989).

[22] See id.

[23] See Scott v. McPheeters, 33 Cal. App. 2d 629 (1939).

[24] Cal. Civil Code § 43.1 (West 2001)

[25] See Scott v. McPheeters, 33 Cal. App. 2d 629 (1939).

[26] There is a line of cases involving a “wrongful life” claim by a child against a negligent physician.  See Turpin v. Sortini, 643 P.2d 954 (Cal. 1982). Essentially the claim is that if it were not for the physicians negligence, the child would not be born. See id. This is not applicable here because Stephanie is not alleging that she should have never been born. See id.

[27] See Prosser And Keeton On The Law Of Torts, § 42 at 273 (W.P. Keeton, D. Dobbs, R. Keeton & D. Owen 5th ed. 1984)

[28] The cases that have confronted this issue always mention that since this involves great balancing of public policy, it should be a decision made by the legislature rather than the courts.  See Bonte for Bonte v. Bonte, 616 A.2d 464, 466 (N.H.,1992).

[29] See Chenault v. Huie, 989 S.W.2d 474 (5th Dist. 1999).

[30] See id.

[31] See id.

[32] See id.

[33] See id.

[34] See Stallman v. Yougquist, 125 Ill. 2d 267 (Ill. 1988).

[35] See id.

[36] See Grodin v. Grodin, 102 Mich. App. 396 (Mich. Ct. App. 1980) and Bonte v. Bonte 616 A.2d 464, 466 (N.H. 1992).

[37] See id.

[38] See id

[39] Please note that this line of analysis is applicable only to that of Stephanie’s cause of action against Phoebe for negligence.

[40] Restatement (Third) of Torts § 324A (1989).

[41] See Scott v. McPheeters, 33 Cal. App. 2d 629 (1939).

[42] While it might be arguable that the fetus is not ‘another’ as stated in §324, many cases have allowed for children to sue their mother’s obstetrician for damages sustained while they were a fetus. See Renslow v. Mennonite Hosp., 67 Ill. 2d 348 (Ill. 1977); Turpin v. Sortini, 31Cal. 3d 220 (Cal. 1982).

[43] I think upholding the validity of surrogacy contracts in the Johnson case shows California’s interest in preserving the freedom to contract and use of new reproductive technologies.

[44] See Vaughen v. Menlove, 132 Eng. Rep. 490 (1837).

[45] See id.  Physical conditions of defendants (such as blindness and deafness) are allowed to be taken into consideration when establishing the standard of care. See Restatement (Third) of Torts § 283 (1989).

[46] See Chenault v. Huie, 989 S.W.2d 474, 478 (5th Dist. 1999).

[47] See id.

[48] See id.

[49] See Restatement (Third) of Torts § 299A (1989).

[50] See id.

[51] See Restatement (Third) of Torts § 299A Cmt. E (1989) (“[T]he standard of skill and knowledge required . . . is that which is commonly possessed by members of that profession or trade in good standing. It is not that of the most highly skilled, nor is it that of the average member of the profession or trade, since those who have less than median or average skill may still be competent and qualified”). Id.

[52] See Hill v. Sparks, 546 S.W. 2d 473, 476 (Mo. Ct. App. 1976).  See also Restatement (Third) of Torts § 298 Cmt. D (1989).

[53] See id.

[54] See Hill at 476.

[55] Id.

[56] After the necessary discovery has been accomplished, we would employ the risk calculus in the seminal case of United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).  The probability of harm arising from the activity and magnitude of loss due to the activity is weighed against the burden of avoidance. See id.

[57] See generally Wex S. Malone, Ruminations in Cause-in-Fact, 9 Stan. L. Rev. 60 (1956).

[58] See Restatement (Third) of Torts § 432(l) (1989).

[59] Id.

[60] See generally Leon Green, The Rationale of Proximate Cause (1927).

[61] See Mauney v. Gulf Refining Co., 9 So. 2d 780 (Miss. 1942).

[62] 665 P.2d 947 (Cal. 1983).

[63] See Restatement (Third) of Torts § 924 (1989). 

[64] See Turpin v. Sortini, 31 Cal. 3d 220 (CA 1982). Wrongful life cases are where absent a physician’s negligence, a life altering condition would have been discovered in a gestating fetus and the fetus would be aborted.  See id. Children born with the ailments sue to recover damages on the theory that they should have never been born. See id.

[65] See id. at 239.

[66] Ordinarily, a plaintiff must introduce expert testimony to support the claims for medical expenses. See Callaway v. Miller, 163 S.E.2d 336 (Ga. 1968).

[67] I suppose one could argue that parenting a child with very severe developmental disabilities requires that a parent stay home caring for the child and thus lose income throughout the child’s life.  But damages must be proved with reasonable certainty and this would probably call for too much speculation by the court.

[68] See Waldorf v. Shuta, 896 F.2d 723 (3d Cir. 1990).

[69] See Roussel v. Berryhill, 444 So. 2d 1286 (La. Ct. App. 1984).

[70] See Klein v. Children’s Hosp. Med. Center of N. Cal., 54 Cal.Rptr.2d 34 (1st Dist. 1996).

[71] See 669 P. 2d 41 (Cal. 1983).

[72] Id.

[73] See McDougald v. Garber, 536 N.E.2d 372 (N.Y. 1989) (finding that a comatose victim of defendant’s negligence was incapable of knowing that she had loss enjoyment of life and therefore not allowed to receive pain and suffering damages).

[74] See Cal. Civ. Code § 3294 (West 2001).

[75] See id.