'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
Date Written: 2003
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: Suggested Citation