Should surrogacy be legal?

A child born to a surrogate is in an uncertain legal situation

Question: Should surrogacy be legal?
Position‹2 of 3›: No. Surrogacy should be illegal.
Argument‹2 of 5›: A child born to a surrogate is in an uncertain legal situation

Especially when born in international surrogacy arrangements, the children born from surrogacy may find themselves in the middle of a legal battle.

The argument

Surrogacy contracts are big business, worth roughly $6 billion globally per year. While intended parents and surrogates can record how they want the arrangement to work, these aren’t legally enforceable. In the UK, a Parental order can be applied for if one or both of the intended parents are genetically related to the child. In the US, states range from Michigan, which forbids all surrogacy agreements, to California which permits commercial surrogacy, regularly enforces gestational surrogacy contracts, and makes it possible for all intended parents, regardless of marital status or sexual orientation, to establish their legal parentage prior to the birth and without adoption proceedings. The unregulated terrain in USA at federal level leading to "jurisdictional chaos." Issues especially arise when surrogates refuse to transfer custody. Additionally, the pregnancy of surrogates is plagued with questions about the child. Who is legally responsible? What if the intending parents split up? What if they change their minds or die? What if the baby is premature or has health problems? What if the baby has health problems resulting from the surrogate's drug use or alcohol intake during pregnancy? Pre-existing family law is inadequate to address surrogacy, in part because of the multiple parents, and in part because of the breakdown in traditional parenting functions. There are implications for children’s citizenship, which should be their country of birth, but some countries won’t recognised a child born under a surrogacy agreement. Generally courts decide on individual cases according to what they decide is the best interests of the child.

Premises

[P1]Surrogacy arrangements are not governed by consistent, enforceable legal frameworks, leaving parentage, custody, and citizenship of the child unresolved across jurisdictions. [P2] This legal uncertainty exposes children to serious harms when disputes arise, such as surrogates refusing to transfer custody, intended parents separating or dying, or countries refusing to recognise the child. [P3] A practice that routinely leaves children in a precarious legal status should not be permitted. [C] Therefore, surrogacy should be illegal.

Counter-arguments

Critics reply that legal uncertainty is an argument for regulating surrogacy, not banning it. The uncertainties described — parentage, custody, citizenship — arise precisely where the law is absent or inconsistent, and jurisdictions with clear statutory frameworks (pre-birth parentage orders, enforceable gestational contracts, defined citizenship rules) resolve most of them, showing the problems are contingent on poor regulation rather than inherent to surrogacy. Prohibition, moreover, does not make surrogacy disappear; it pushes it abroad or underground, where children face greater legal precarity, not less. The remedy for uncertain legal status, they argue, is good law, which serves children better than a ban.

Rejecting the premises

[Rejecting P1] The unresolved parentage and citizenship issues stem from absent or inconsistent regulation, which clear statutory frameworks already resolve, so they are not inherent to surrogacy. [Rejecting P2] The harms cited arise in unregulated settings; well-designed law with pre-birth orders and enforceable contracts prevents most of them. [Rejecting C] Since prohibition displaces surrogacy abroad or underground rather than ending it, banning it worsens children's legal precarity, so regulation is the better response.

The argument

Premises

Counter-arguments

Rejecting the premises

Further reading