December 6, 2021

Could surrogacy contracts work?

Dutch writers are sceptical
The complications involved in commercial surrogacy are leading lawyers and legislators to considering regulating what they cannot forbid. As a Dutch minister cited put it:

Surrogacy is a legal twilight zone; I think we have to end that. This also means that we have to come to a neat arrangement, managing surrogacy in a decent way. So no more abuses in faraway countries that we don’t want, but surrogacy in the Netherlands on a non-commercial basis.

So  pre-conception authorization of surrogacy agreements (PASA) is being studied in the Netherland and the UK. Two Dutch researchers critique this in a very interesting article in a special issue of The New Bioethics on surrogacy.

Bans on surrogacy are meant to protect women and children against commodification and exploitation. But they are easily evaded by resorting to the black market or by going overseas.

But PASA may not protect them effectively either, they argue.

PASA legislation is supposed to discourage intending parents from going overseas where the dangers of exploitation and commodification are normally much greater. 

However, our analysis suggests that both promises will prove to be false. First, proposals for PASA contradict themselves, by defending PASA as a way to discourage surrogacy tourism, while, at the same time, not only refusing to close off ‘the foreign route’, but even making it more attractive.

Second, although PASA is presented by its advocates as a more effective way of safeguarding human rights and human dignity in surrogacy arrangements, a novel normative outlook is silently being introduced, which offers less protection to surrogate mothers and surrogacy-born children.

Finally, although the assessment that is supposed to take place under PASA contains standards to make sure that surrogacy arrangements are not commercial, commodifying or exploitative in nature, the experience in Greece and South Africa suggests that authorities will nevertheless rubber-stamp arrangements of such nature.

In fact, the authors are so convinced that this system will fail that they predict that: “children born from such practices might, in the future, sue the state for failing to protect their human rights and dignity. Such lawsuits are already taking place in the context of adoption and donor-conception, and are likely to follow in the context of surrogacy as well if PASA is introduced.”

Michael Cook is editor of BioEdge

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