'Just the Oven': A Law & Economics Approach to Gestational Surrogacy Contracts

PERSPECTIVES FOR THE UNIFICATION OR HARMONISATION OF FAMILY LAW IN EUROPE, pp. 412-433, Katharina Boele-Woelki, ed., Antwerp: Intersentia, 2003

23 Pages Posted: 24 Mar 2003 Last revised: 11 Dec 2009

Aristides N. Hatzis

University of Athens - Department of Philosophy & History of Science; University of Athens - Faculty of Law; Athens University of Economics and Business - Department of Economics

Date Written: 2003

Abstract

Gestational surrogacy is a form of artificial insemination whereby a doctor implants the fertilized eggs of a woman into the surrogate's uterus. Gestational surrogacy contracts are unenforceable almost everywhere in the world. In this paper, we support the thesis that these contracts should be enforceable. Our approach is informed by the economic analysis of contract law and is predicated on the assumption that law should serve social welfare (as a function of individuals' well being). We discuss and rebut the arguments most often invoked against surrogacy: immorality, commodification and exploitation. Finally, we present some legal policy proposals for the regulation of gestational contracts in order to safeguard the best interests of the child, to ensure the informed consent of surrogate mothers and to protect intentional parents from the surrogate's opportunistic or reckless behavior.

Keywords: commercial surrogate motherhood, gestational surrogacy contracts, medical ethics, commodification, exploitation, child welfare, assisted reproduction

JEL Classification: I11, J13, J48, J82, K10, K32

Suggested Citation

Hatzis, Aristides N., 'Just the Oven': A Law & Economics Approach to Gestational Surrogacy Contracts (2003). PERSPECTIVES FOR THE UNIFICATION OR HARMONISATION OF FAMILY LAW IN EUROPE, pp. 412-433, Katharina Boele-Woelki, ed., Antwerp: Intersentia, 2003. Available at SSRN: https://ssrn.com/abstract=381621 or http://dx.doi.org/10.2139/ssrn.381621

Aristides N. Hatzis (Contact Author)

University of Athens - Department of Philosophy & History of Science ( email )

MITHE, University Campus
Ano Ilisia
Athens, 15771
Greece
+30 210 7275565 (Phone)
+30 210 7275530 (Fax)

HOME PAGE: http://www.phs.uoa.gr/ahatzis

University of Athens - Faculty of Law

Athens
Greece

Athens University of Economics and Business - Department of Economics ( email )

Athens
Greece

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