Is Surrogacy Ethically Constrained? Should Surrogacy be Legally Enforcable?

I recently read these articles and they made me think about how surrogacy operates and the risks associated with it. So I thought a post was needed. In answer to the questions above I will state my own personal views. I believe that surrogacy is ethical constrained. By this I mean that someone who enters into a surrogacy agreement should be held morally accountable for that decision and for breaking it. Moreover I believe that the only way to ensure that breaches of surrogacy agreements are going to be penalised is through the law. Equally if you agree to pay someone to carry your child you have a responsibility to the surrogate to help them and take their interests into account. Thus surrogacy is morally bounded and should be legally recognised and enforced.

I will focus on the legal side of this discussion, perhaps someone else would like to comment on the ethical issues. Although I would like to say that I believe it is morally reprehensible to agree to provide a childless couple with a child, only to renege and keep a child that the surrogate otherwise would never have had.

So why should the law enforce surrogacy agreements? I think surrogacy should be legally enforced because failure to do so leaves an entire crucial area of people lives completely unprotected and safeguarded. As the two articles above demonstrate breaches can be caused by either party. Both should be equally protected and penalised by the law in the event of a breach. This is because surrogacy should be treated as a legally recognised and accepted form of family creation. Moreover such a step would force the UK’s legal system to clarify the situation for families that use reproductive technology.

It would also create a higher degree of certainty for prospective parents and for the future child, at least in terms inheritance, custody, legal powers and so on. It would also forearm agreement makers and make clear the fundamental basis of the relationship between the parents and the surrogate. The increased certainty would also allow people and the state to tackle head on the issues that arise, such as surrogates forming a bond with the child such that they want to keep it or parents absconding without meetings the needs and obligations they have to surrogate. Either way I believe that leaving surrogacy so far out in the cold is benefiting no one, and causing far more harm by leaving so little guidance for all parties involved.

Sam Walker (PhD Student)