The requirement of assurance of health-care expenses until birth of the resulting child imposed by subsection (b)(4) further protects the gestational mother.

Finally, subsection (b)(5) mandates that the court find that compensation of the gestational mother, if any, is reasonable in amount.

Section 803, spells out detailed requirements for the petition and the findings that must be made before an authorizing order can be issued, but nowhere states the consequences of violations of the rules. Because of the variety of types of violations that could possibly occur, a bright-line rule concerning the effect of such violations is inappropriate. The consequences of a failure to abide by the rules of this section are left to a case-by-case determination. A court should be guided by the Act's intention to permit gestational agreements and the equities of a particular situation. Note that § 806 provides a period for termination of the agreement and vacating of the order. The discovery of a failure to abide by the rules of § 803 would certainly provide an occasion for terminating the agreement. On the other hand, if a failure to abide by the rules of § 803 is discovered by a party during a time when § 806 termination is permissible, failure to seek termination might be an appropriate reason to estop the party from later seeking to overturn or ignore the § 803 order.

Maine Comment

Maine's revision has eliminated the requirement of a home study to minimize complexity, expense and delay. Surrogacy is different from adoption. In adoption, a genetic mother places her child into the adoptive process after the child is born. In surrogacy, the intended parent or parents may be the genetic parent or parents, but whether they are or not, a child is procreated because a medical procedure was initiated and consented to by the intended parent or parents. The parent or parents who planned to create and raise a child, taking extensive and complex steps to do so, are the legal parents of the child whether or not there is a genetic tie. The child would not have been born but for the efforts of the intended parent or parents. Since the issues involved in surrogacy are so different from those involved in adoption, it does not make sense to superimpose the home study required by adoptions onto the surrogacy situation.