Surrogacy, Autonomy, and Equality

Abstract

This Chapter provides background material for conversations held at the 2020 Global Constitutionalism Seminar (a part of the Gruber Program on Global Justice and Women’s Rights) at Yale Law School. As surrogacy becomes widespread, it may call for new forms of judicial response. This Chapter surveys the different ways that surrogacy is practiced across borders, and the different ways the practice has been criticized and valued. After considering some of these debates (does surrogacy exploit and commodify women or empower them to pursue their own autonomous life ends?), the Chapter then turns to critical issues surrounding surrogacy legislation. It examines the ability of individuals, including unmarried and LGBTQ individuals, to access surrogacy for family formation. And it addresses the interests of individuals serving as surrogates, including questions of compensation and decision-making during pregnancy. Finally, the Chapter examines questions of parental recognition, implicating the constitutional interests of the intended parents, the person serving as the surrogate, and the child. By exploring how courts, legislatures, and human rights tribunals have addressed surrogacy transnationally, the Chapter shows that the meanings and implications of surrogacy vary across contexts and depend on how the practice is structured and regulated.