Article by: David M. Smolin

43 PEPP. L. REV. 265 (2016)

This Article argues that most surrogacy arrangements, as currently practiced, constitute the “sale of children” under international law and hence should not be legally legitimated. Therefore, maintaining the core legal norm against the sale of children requires rejecting claims that there is a right to procreate through surrogacy. Since a fundamental purpose of law in the modern era of human rights is to protect the inherent dignity of the human person, a claimed legal right that is built upon the sale of human beings must be rejected.

This Article refutes common arguments claiming that commercial surrogacy does not constitute the sale of children and should be legally legitimated. Upon analysis, those arguments, and the corollary legal regimens legitimizing a commercial surrogacy industry, are thinly veiled rationalizations for accepting commercial arrangements involving the de jure and de facto transfer of infants in exchange for monetary compensation.

This Article describes the minimum regulatory approach under which the practice of surrogacy would not constitute the sale of children. This Article argues that legal principles applicable to adoption, which are designed to protect vulnerable birth parents and children and to prevent human trafficking and the sale of children, should be adapted and applied to surrogacy.

Comparison to adoption is also useful in revealing the hidden hypocrisy of the surrogacy industry. Surrogacy industry proponents claim to reflect a progressive acceptance of new means of family formation, but in fact advocate for a retrograde and pseudo-traditionalist set of legal rules that cut off significant rights of surrogates and surrogate-born persons to information, autonomy, and relationship. In a context where birth parents and adoptees are gaining new rights in the context of adoption, surrogacy proponents seek to build an industry which empowers intended contractual parents and profit-seeking intermediaries at the expense of the rights of surrogates and surrogate-born persons.

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