Selected legal aspects of surrogacy

Abstract

Despite decades of debates on the moral and legal permissibility of surrogate motherhood, it remains a controversial practice with significantly diversified national regulations. The aim of this article is to discuss the issue of surrogacy through the prism of existing legal solutions, with particular emphasis on Polish law. Surrogacy is an arrangement in which the surrogate becomes pregnant and gives birth to a child for another person(s) — so-called intentional parent(s). Critics of surrogacy argue that economic coercion remains the main motive for surrogate mother’s decisions to participate in the arrangement, leaving them at risk of exploitation, abuse, and commercialization of both the female body and the children themselves. Pro-surrogacy scholars and activists tent to emphasize the altruistic motivations of surrogate mothers, the impact of surrogacy on reproductive justice (e.g. among queer individuals) as well as the postulate of looking at surrogacy through the prism of the bonds formed between parties involved.

Three basic types of legal regulations regarding surrogacy may be distinguished: the permissibility of both altruistic and commercial surrogacy (e.g. Ukraine), the prohibition of commercial surrogacy with the simultaneous permissibility of altruistic surrogacy (e.g. Great Britain and Israel), and a complete ban of all forms of surrogacy (e.g. Germany). Poland remains one of the countries where no surrogacy solutions have been introduced so far. This lack of legislation should be assessed negatively as it poses a threat to all actors involved in the surrogacy process, including children born as a result of surrogacy arrangement. While introducing such regulations, both the experience of countries with various forms of surrogacy regulations and the transnational context should be taken into account. The legislator should also distinguish the comprehensive nature of surrogacy and the need to create a nuanced solution that will combine the issue of socio-economic coercion and the protection of surrogate mothers with the experiences of surrogate mothers themselves, including full recognition of their agency.