Commercial Surrogacy: Law and Ethics

This paper examines the United Kingdom’s (UK) legal framework on commercial (gestational) surrogacy from an ethical perspective. It does this in three parts. First, it outlines the relevant statutory provisions in the UK and draws attention to problems in recent case law involving foreign surrogates. Second it considers two views – the ‘thin’ and ‘thick’ – that frame the choice and commodification debates in contract surrogacy and argues that the ‘thick’ is preferable because it recognises disparities and moves beyond an individualistic approach. Third, it examines the commodification position further by considering whether commercial surrogacy should be defended if there were no inequalities. This paper argues that it should not as persons are not ‘things’ with separable parts to be contracted out like goods, and neither is reproductive labour akin to other forms of labour or other ends. Thus, the kind of law we ought to adopt is one where commercial surrogacy is prohibited (much like the UK system) but where this is a global initiative (which will avoid the kinds of problems UK case law has recently presented).