Response of Professor Field.

Abstract

As Professor Hill says, there is one important respect in which he and I agree with each other and disagree with what most states would do today. Faced with a surrogacy arrangement involving a dispute over custody, most state courts would decide the dispute on its own facts, according to the court's view about which parents seemed best for the child. Hill and I both stress that custody battles should be avoided, that parties should not have to go to court to find out who will prevail, and that courts should not decide disputes by comparing the parental characteristics of the particular parties. Instead courts or legislatures should formulate a rule of law that predetermines which party will receive custody in the event of a dispute.