Commercial Surrogate and Child: Ethical Issues, Regulatory Approaches, and Suggestions for Change (Working Paper)

Abstract

Commercial surrogacy, as it is taking place in a modern global environment, has led to renewed debate about the practice and whether, and if so how, it should be regulated. Such debate has increasingly focused upon issues of statelessness and legal parentage of resulting children; however, commercial surrogacy continues to raise broader ethical and legal issues concerning women and children. This paper therefore considers issues concerning the sale and commodification of children; social and financial pressures that may influence participation (and bargaining power) of women; racial, cultural and social disparities; risks of human trafficking; and questions of autonomy and consent. Section II of the paper outlines such issues as they have been viewed in the past, and as they have re-arisen in the modern global context of commercial surrogacy. Section III then briefly outlines global patterns of how commercial surrogacy is regulated, before examining and making suggestions for domestic and international regulatory solutions that may help to address the issues raised. The suggestions pertain to jurisdictions that choose to continue to prohibit such practices, and those that choose to permit commercial surrogacy within their borders, recognising that a global consensus on the issue may be difficult (if not impossible) to achieve. Nevertheless, it is argued that it would be preferable to limit the practice of commercial surrogacy within those jurisdictions that continue to allow it, and to support those nations that continue to prohibit it.

Keywords: Commercial surrogacy, bioethics, surrogacy law, international convention on surrogacy