In the case of Baby M, The Times, if it were the judge, would award the baby to the mother because of the special affinity between mother and child.
There could not have been any affinity whatsoever on the surrogate mother's part because it was strictly a cash-and-carry deal on her part.
Also there are many answers to problems that will arise if surrogate mothers are permitted to welsh on these contracts.
Must the surrogate mother return the money given her for breaking the contract made in good faith?
Should the biological father be entitled to damages for using his sperm in a broken contract?
Will the biological father be required to support the child until the child reaches maturity?
Should the biological father and his wife be entitled to damages for mental anguish?
Finally, it must be remembered that the child would be much better off with its biological father and wife in this particular case because they are much, much better off financially and educationally than the surrogate mother and her husband.