by Lois McLatchie, University of Kent, CBC Legal Intern

A Review of “Surrogacy and Limitations to Freedom of Contract: Toward Being More Fully Human” by Adeline A. Allen in Harvard Journal of Law & Public Policy (PDF)

Adeline Allen’s recent article focuses on the document at the crux of all surrogacy deals: the contract. Here, at the point where the two trade parties meet, we see the stark imbalance of the exploitative surrogacy industry in black and white.

Allen argues that while there is a fundamental right for citizens to be free to make contracts between themselves, this freedom must be limited by the government in order to avoid the exploitation of poorer, weaker parties.* By setting boundaries around what people can pay other people to do, the state ensures a safety net for the health and freedom of all citizens – not just those who can pay the most. Just as the limits of gravity give dancers the freedom to dance – limits to the demands made in a contract can allow freedom for all parties to benefit from transactions. Against this backdrop, Allen discusses the exploitative nature of surrogacy contracts based on an imbalanced social class/gender power relationship; the unequal burden of health risk on the surrogate mother; and the lost voice of the child within the debate, who can give no consent to being removed from his or her parent.

Using the example that one cannot contract for an assassination, Allen shows that boundaries around contracts are important for preserving a just society. She pairs her legal argument with examples of psychological and physical harm brought upon the surrogate mother, allowing her to compare surrogate contracts with such criminal acts.

Some may argue, however, that stricter regulation of a surrogacy contract is the answer – allowing the parties to “dance” within the regulated boundaries. Others argue that altruistic surrogacy is bound to reduce economic exploitation, allowing financially stable mothers to choose to be a surrogate out of love for an infertile friend. In response, Allen claims that few cases are truly altruistic. Even in such cases, all surrogacy contracts, paid or unpaid, put women in a position of psychological and physical vulnerability. She also highlights later that even when a surrogate gives free and informed consent, the child has no place to sign on the contract – forcing him or her into a lifetime of separation from the birth mother. A more comprehensive response by Allen to these counter-arguments would be beneficial.

Allen’s position on limited contract freedom could have great traction in the international sphere. In cross-border surrogacy situations, the exploited party is generally from a non-Western nation with a low-GDP, and is commissioned by a wealthy white European/North American couple. Given the history of the West’s relationship with countries such as India, Pakistan, and Thailand – all of whom have closed down their part in international surrogacy transactions in recent years – there is a strong allusion to colonialist exploitation here. Even if a desperate woman gives consent to selling her body in order to earn money to feed her family, making use of this desperation is not ethical. Rather, we should examine the social structure that put her in such a needy situation, and take steps to strengthen her ability to earn and to participate fully in society without resorting to selling herself. This post-colonial angle could provide interesting grounds for further study.

Nevertheless, by demonstrating that total unrestricted freedom of contract is in fact detrimental to the true freedom of the parties involved, Allen shows that surrogate contracts are blight on the dignity of the surrogate mothers and of the children they bear. Indeed, if the “best interests of the child” are truly meant to be at the forefront of such cases, they seem to be entirely forgotten in the legal document. Though further discussion must be had on the applicability of this argument to altruistic surrogates, the article successfully shines a light on contracts that the surrogacy industry claims are “neutral” and consent-driven. They are in fact tools for the exploitation of vulnerable women in our society.

*For those interested in delving more greatly into the conceptual argument of contract restriction, see David P. Weber, “Restricting the Freedom of Contract: A Fundamental Prohibition” (2013) 16,1 Yale Human Rights and Development Journal 51.

Image by Freepik