Problem.Drafting.Surrogacy contract

     Margie Ruiz desperately wants a child.  She is often lonely because her husband is a government courier who is out of the country more than six months each year.  Both Mr. and Ms. Ruiz are infertile and Ms. Ruiz is unable to bear children.  Having recently read that surrogacy contracts were enforceable in her state of residence, Ms. Ruiz has convinced her husband that the two of them should enter a surrogacy contract with a woman who would be able to bear them a child from in vitro fertilization of donated ova by donated sperm.  Through Surrogacy Services International ("SSI"), Mr. and Ms. Ruiz located a woman, Helena Fernandez, willing to bear a child for them.  SSI filled in the blanks on a form surrogacy contract that they provided for their clients and gave the contract to both Mr and Ms. Ruiz and to Ms. Fernandez with a recommendation that each seek independent legal counsel to review and discuss the contract prior to its execution. 

     The contract reads, in part, as follows:

     Whereas Mr. Roberto Ruiz and Ms. Margie Ruiz (hereafter "M/M Ruiz") are childless and unable to conceive children, and whereas Ms. Helena Fernandez (Fernandez), mother of two children of her own, wishes to extend the joy of parenthood to a childless couple, Ruiz and Fernandez agree as follows:

     1.0.  Fernandez shall attempt to become pregnant through implantation of a fertilized ovum to be obtained by M/M Ruiz.

     2.0.  Should Fernandez become pregnant as a result of such implantation, she shall continue the pregnancy through term, surrender to M/M Ruiz any child or children born of that pregnancy immediately following birth, and permit them without any interference whatsoever to adopt and raise that child or those children as their own.  Fernandez shall cooperate fully in any necessary adoption proceedings and sign any papers required for such adoption

     3.0.  M/M Ruiz shall pay Fernandez $20,000 in exchange for bearing and surrendering the child or children described in paragraph 2.0.  Half of this sum is payable to Fernandez upon verification of pregnancy and is nonrefundable.  The balance is payable to Fernandez upon surrender of the child or children to M/M Ruiz. 

     4.0.  In addition to the sum payable under paragraph 3.0, M/M Ruiz shall pay all medical expenses incurred by Fernandez in connection with the birth of the child or children born of the pregnancy described in paragraph 2.0, including without limitation expenses for prenatal examinations, obstetrical services, and hospital charges. 

     5.0.  During the pregnancy described in paragraph 2.0, Fernandez shall refrain from smoking, from consumption of alcohol, and from consumption or use of any controlled substance except as prescribed or approved by her OB/GYN. 

     Mr. and Ms. Ruiz have brought the contract to you for review and advice.  The contract raises several questions in your mind, among them:  What would Mr. and Ms. Ruiz want to do if the child born of the pregnancy is diagnosed as suffering severe, potential life-long disability as a result of smoking by Ms. Fernandez during pregnancy or as a result of consumption of alcohol or impermissible consumption or use of a controlled substance by Ms. Fernandez during pregnancy?  What would the contract permit them to do in that circumstance?  What would either of them want to do if twins (or more) were conceived? (In August, 2001, Helen Beasley, a surrogate mother, filed suit against attorneys Charles Wheeler and Martha Berman (husband and wife) alleging that the couple, upon learning that Ms. Beasley was pregnant with twins, ordered her to abort one of the fetuses because they only wanted one child.  The couple responded that the surrogacy contract included a "selective reduction" clause, applicable if Mr. Beasley became pregnant with more than one child.)   What would either of them want to do if the other died prior to birth of the child?  What would contract law permit them to do in that circumstance?  If the contract or contact law does not clearly answer those questions, how might you redraft the contract to address those questions?