John and Juana Child have been married for ten years. They are both 35 years old, and for the past eight years they've been trying to have a child, without success. Upon learning that they would likely have to wait another five years for an infant to come available for adoption, the Childs decided to seek the services of a surrogate. Responding to an advertisement in the paper, the Childs visited the office of James Matchum, an attorney who sets up surrogacy agreements. Matchum introduced the couple to Barbara Tufflife, a 25-year-old divorcee with a child from her former marriage. Tufflife was out of work, and her first pregnancy was easy, so she was interested in acting as a surrogate. The three people got along well, and the Childs were impressed with the health and energy of Tufflife's two-year-old son, so they decided to enter into a surrogacy contract with her.

Matchum drew up a contract in which Tufflife agreed to: 1. Be artificially inseminated with Child's sperm (her own ova would be used) 2. Refrain from smoking or drinking alcohol during the pregnancy 3. Carry the child to term if it was healthy or abort if it was shown to have major defects 4. Terminate her parental rights and execute all necessary documents for the Childs to become the legal parents of the baby

In return, the Childs agreed to pay all medical costs and give Tufflife an allowance of $8000 per month for living expenses during the pregnancy and for a three-month recuperation period after the birth. Both parties signed the agreement, the pregnancy was successful, and a healthy baby boy was born. However, Tufflife now refuses to relinquish the child, claiming she is his mother and is entitled to keep him. Prepare an argument for each side as to the validity of the contract and address the following questions. Write up a summary of your arguments. Consider the following: Is this a federal or state based question?

Is the problem likely to be resolved by reference to the Constitution, statutes, regulations, or case law?

What are the elements of a contract?

Was this a valid contract?

What remedies are available for a breach of contract?

Are any of those remedies adequate to compensate the Childs in these circumstances? The Equal Protection clause of the U.S. Can the childs use this in their favor?