Many scholars have written about commercial surrogacy, whichinvolves a contract in which a woman agrees to carry a child for another personto whom she will relinquish the child when it is born.
The typical caseinvolves a married couple who cannot have their own biological child becausethe wife is infertile. Therefore, the couple enters into an agreement with awoman (the surrogate) who will carry a child for them; the man (the father)provides the sperm which will be used together with the surrogate’s egg toproduce a child! The surrogate will carry this child to term and subsequentlyrelinquish it to the father and his partner (the recipient woman) . This isknown as partial surrogacy; however, the recipient woman may also donate hereggs, rendering the arrangement a “full surrogacy.
“There are caseswhere friends or family members carry children for each other without charginga fee; however, commercial surrogacy generally involves a broker who brings theparties together for a fee and both the broker and the surrogate are paid. Theexisting literature surrounding the commercial surrogacy debate shows thatthere is a tendency, by those on both sides, to compare surrogacy toprostitution. This paper will show that this analogy is sufficiently weak toundermine the arguments for which the authors intend it to stand.
First, theanalogy minimizes the harms of prostitution, an act that can present manyproblems, and at the same time, makes surrogacy-an act which has less potentialfor harm seem worse than it actually is by hiding the benefits and exposingonly tenuous harms. Thus, the analogy does a disservice to both surrogacy andprostitution. Second, the analogy suggests, for some, that surrogacy should beprohibited because a woman cannot rationally “choose” surrogacybecause of the negative connotations and stigma involved.Commodification of the female’s uterus and/or eggs hasfurther been used to argue against both surrogacy and prostitution.’ This paperwill touch briefly on the fact that commodification, while existent in bothsurrogacy and prostitution, should not be viewed negatively.
Further, thispaper will counter the argument that as a policy matter, both surrogacy andprostitution should be prohibited or regulated because they both involvecoercion and/or exploitation. This paper will conclude that while thisproposition may be true for prostitution in some circumstances, it is not truefor surrogacy.