Surrogacy and Human Flourishing

Abstract

Opposition to legalizing surrogacy often involves the argument that it commodifies or objectifies women and children. When surrogacy involves consenting parties claim to benefit from the transaction, commodification- or objectification-based arguments seem unpersuasive. This article argues that new natural law theory offers an alternative case against legalizing surrogacy based on the violation of basic goods of human flourishing, a notion which unpacks afresh what is really at stake in the commodification/objectification arguments. Exploring the new natural law approach through Finnis’s theory, this article suggests that the new natural law case against surrogacy hinges on the link between childbirth and raising children, which turns out to be the major bone of contention in the surrogacy debate. The establishment of the link turns on answers to empirical questions as to what is in the best interests of the child, as well as on contested notions of motherhood, raising questions of a philosophical or normative nature. This article elucidates for policy makers and legislators the precise issues they must face squarely in order to determine whether to legalize or prohibit surrogacy arrangements.

Keywords: surrogacy, human flourishing, John Finnis, natural law theory, surrogate parenthood, best interests of the child, commodification