Against Private Surrogacy

Abstract

Abstract This is Anca Gheaus’s main chapter, providing a child-centred criticism of surrogacy. Gheaus argues that surrogacy is best understood as an attempt to transfer the moral right to parent from one private individual to another, at will. But children’s moral status limits the power that may be legitimately exercised over them—including parental power—to what is in the best interest of the child, suitably defined, and in line with third parties’ moral rights. Therefore, the moral right to parent does not protect the would-be parent’s interest in exercising authority over the child; it is not a claim right, but a liberty, or privilege. Parents lack the normative power to transfer their right to custody privately; surrogacy, whether altruistic or commercial, is an attempt to engage in such a transfer and is therefore illegitimate. The law should reflect this fact, banning privately arranged transfers of custody. A radically transformed practice of surrogacy could be legitimate, on the condition that it allocates legal parenthood in ways that are respectful to children.