If the husband attempted to assert his paternal rights, it is not at all certain that the biological father who donated the semen could win in court. Likewise, many potential surrogate mothers are unwilling to enter into contracts if they will not be paid in some form, even if only for medical expenses. However, every state prohibits the selling of babies. An unfriendly judge could interpret any exchange of money as a violation of these laws, except in a state that expressly authorizes payment of expenses. Under standard contract law, an exchange of something of value is called consideration.
Consideration is needed to create a valid contract.
Some states outlaw surrogacy contracts Another serious problem exists for couples who live in states that either outlaw surrogacy contracts or have no clear law on the subject. Such couples may be inclined to try to enter into a contract in a state like Arkansas or Florida. However, sometimes these couples may not be able to take advantage of the law of another state unless they first establish legal residence there or have some other significant contact with that state. This could mean the couple might have to move to the state, find living quarters and remain in that state until they can meet legal residency requirements. Surrogate parenting is a highly risky and potentially expensive legal venture.