DM Berlin: The German government should legalise commercial surrogacy



Commercial surrogacy is when a woman gets pregnant with another person’s child in exchange for payment from the child’s genetic parents. This is often because the wanting parents are biologically incapable of safely gestating a child themselves. But, in many cases, time-starved, wealthy individuals choose to have a surrogate rather than putting life on pause with pregnancy. Some countries like the UK [Ref: UK Government] and the Netherlands [Ref: Government of the Netherlands] allow altruistic surrogacy, where the surrogate acts out of kindness, being paid no more than their living expenses. However, Germany’s ‘Embryonenschutzgesetz’ [Ref: ESchG] forbids all forms of surrogacy.

But surrogacy as a paid service has been brought back to public awareness by various high-profile celebrities in the USA, such as Elton John, Kim Kardashian, Paris Hilton, Rebel Wilson and Jimmy Fallon [Ref: People]. This has led to debate around whether commercial surrogacy should be opened up as an option in other countries.


And surrogacy is on the rise where it is legal. Over the past decade, the number of surrogate births per year in the England and Wales has quadrupled [Ref: University of Kent]. With an altruistic surrogate being something hard to come by, it is likely these numbers would hugely increase if commercial surrogacy was legalised in the UK.

It is worth noting the phenomenon of surrogacy tourism, where couples and individuals use commercial surrogacy services in countries where it is legal. In Germany, organisations have been offering help and advice to this end. One of them is Gestlife, which runs surrogacy programmes in other countries. However, as we are discussing the moral and practical merits of commercial surrogacy as a general principle, this need not be explored during the debate. Discussions to this end have taken place within the German medical community, with arguments both for and against altruistic surrogacy [Ref: Ärzteblatt].

Should Surrogacy Be Legal at All?                                           

While we are discussing the debate around commercial surrogacy specifically, it can be argued that surrogacy altogether, including altruistic surrogacy, should be banned. Firstly, this is argued on the grounds that it is unnatural in several ways. Father Tad Pacholczyk argues the ‘multiplying of parental roles… coerces children into situations where they are subjected to the unhealthy stresses of ambiguous or split origins’ [Ref: Angelus News]. This is argued to be dehumanising for the child because, instead of being the product of the natural process of a mutually fulfilling adult relationship, they are reduced in some people’s eyes to a clinical science experiment, attempting to usurp nature. Moreover, some people believe that, during a conventional pregnancy, mother and child form a bond. This argument has been brought forward in an article dealing with surrogate motherhood from a criminological point of view [Ref: Kriminalpolitische Zeitschrift]This makes surrogacy, in the eyes of some, a recipe for a bad upbringing, removing intrinsic parts of the process.

However, this is countered by others who argue that this is a knee-jerk, anti-science view. Most of the greatest human achievements can be labelled as ‘unnatural’, like life-saving surgeries and medicines – including IVF treatment which uses science to help women with fertility issues get pregnant. ‘Unnatural’ doesn’t imply bad, and people can have healthy relationships in a variety of family situations. Gestating in another person’s womb to one’s mother need not hamper anyone’s relationship, nor make a child feel dehumanised. Many adoptive families would point out that even sharing the same DNA isn’t a necessary requirement to forming a loving, close family bond.

But counter to this, anti-surrogacy advocates might ask why someone needs, in that case, to parent a child genetically related to them. There are many children in need of adoption and, from a certain point of view, it is little more than genetic narcissism [Ref: Ruth Institute] to insist on an any-means-necessary approach to having one’s own genetic children – especially when there are already so many waiting to be adopted and loved.

An Appeal to Bodily Autonomy

Fundamental to the case for commercial surrogacy is the assertion that women should decide what they do with their bodies, and deserve to have full bodily autonomy. Regardless of personal beliefs about surrogacy, many advocates argue that it is no one else’s business whether or not a woman chooses to use her reproductive capabilities for financial gain. Attempts to ban commercial surrogacy, from this view, are in line with other interventions governments have tried to make to control women’s bodies. In other words, some argue that for women ‘sexism has always suggested that we need a helping hand to make moral and ethical decisions’ [Ref: The Critic].

But this belief is not universally shared. Dr Mohan Rao argues that surrogacy does the opposite of liberating women. He argues: ‘Doctors who prescribe surrogacy strengthen patriarchy. What it represents is the genetic worship of the ‘male line which has to be carried on’. Instead of questioning and undermining the heterosexual normative family, what surrogacy does is entrench it.’ [Ref: New Internationalist]. From this perspective, surrogacy reinforces the oppression of women because sexist standards of society are reinforced by its implication that a conventional nuclear family must be pursued above anything else.

But others would say this has no relevance to the principle of bodily autonomy. If someone believes surrogacy is problematic, they are free to choose not to participate in it. To use Rao’s argument to argue against commercial surrogacy’s legality is to put forward a model of an individual who cannot make moral decisions for themselves, and must be protected from themselves by the state. For many, this is an abhorrent proposition.

Empowerment or Exploitation?

While these ideals of women’s liberation may sound good, there are plenty who argue that commercial surrogacy rather than increasing women’s freedom restricts it. Commercial surrogacy, critics argue, is usually a deeply asymmetrical transaction between people of unequal socioeconomic backgrounds. In other words, commercial surrogates tend to be poor and desperate, and their customers tend to be rich. This results in an exploitative relationship where a woman who supposedly is ‘exercising her right to bodily autonomy’ is really being forced by circumstance to endure a pregnancy, before giving the child away.

As Kathleen Sloan argues, this makes commercial surrogacy little more than ‘the ultimate manifestation of the American neoliberal project of capitalist commodification of human life to create profit and fulfil the narcissistic desires of an entitled elite’ [Ref: Public Discourse]. Some feminists have likened surrogacy to prostitution. The author and activist Julie Bindel writes: ‘I cannot help but see the parallels between the way prostitution and surrogacy operate. Both prostituted women and victims of womb trafficking are coerced by abusive husbands and pimps. Both groups of women are enmeshed in systems of class and race, which ultimately result in their exploitation.’ [Ref: The Critic]. From this point of view, commercial surrogacy is predatory, feeding on those who are victimised by the economic system we live in. Legalisation of commercial surrogacy, then, opens up a new system of exploitation of women, and broadens the gap between the wealthy and privileged and the poor and exploited.

On the other hand, many respond to this by arguing that this is not the case in countries where safeguards are in place. In the US, where commercial surrogacy is legal, the American Society for Reproductive Medicine’s guidelines make sure any surrogate is ‘financially capable of sustaining herself without her surrogate compensation’ [Ref: Guardian]. While there is no legal compulsion to follow these guidelines, there is no reason why legalisation of commercial surrogacy in the UK could not come into being alongside healthy regulation of the industry.

Alternatively, there are people who defend commercial surrogacy as a legitimate means of lifting oneself out of hardship. If the economic system has doomed an individual to poverty, who is anyone to tell them not to improve their own life via payment for a pregnancy? Fees can often reach the tens of thousands, and can be transformational for some people’s lives. Commercial surrogacy, therefore, can be a route out of poverty, and a positive means of ‘giving the greatest gift, which is creating a family’ [Ref: New Internationalist]. Stopping this from happening does not prevent poverty, many argue, but it does stop some women from escaping it.

When Things Go Wrong

Surrogate pregnancies can be, comparative to conventional ones, more complicated. According to the Institute for Family Studies, surrogates are under ‘increased risk of caesarian sections and longer hospital stays… gestational diabetes, fetal growth restriction, pre-eclampsia, and premature birth’ [Ref: Institute for Family Studies]. Opponents of commercial surrogacy cite these risks as part of its sinister nature. In other risky jobs, incidents can be avoided if proper procedure is followed. Whereas one could argue that surrogates are entering a lottery of death and health problems in exchange for payment. On the other hand, many argue that many pregnancies and natural births are themselves full of risk, and innovations like caesareans or screenings can help mitigate any danger posed to the pregnant woman or the pregnancy. In addition, many would still point to the idea of autonomy and argue, given a woman is properly informed of the risks, it should be her choice.

But surrogacy has run into more than just medical problems in the past. Surrogates have been known to become attached to the baby once born, and refuse to hand it over to its genetic parents. The most famous example of this is the case of Baby M, quite early in the history of surrogacy. In this case, surrogate and egg donor Mary Beth Whitehead wanted to renege on her contract after the birth, turning down her payment and beginning a high-profile legal battle over custody of the child she carried [Ref: The New York Times]. This puts into question whether surrogacy is humane, given the emotional strain put on women who go through a traumatic overruling of one of the most powerful human instincts – to keep and love a child one has borne.

Furthermore, there seems to be confusion as to who has ultimate custody of a surrogate-born child, with courts having gone both ways – sometimes siding with the intended parents and sometimes the gestational carrier. [Ref: Stowe Family Law] In March 2023, the Law Commission of England and Wales and the Scottish Law Commission produced a joint report arguing that legal parenthood should be granted to the intended parents at birth. [Ref: Guardian]

However, defenders of commercial surrogacy argue that mothers having second thoughts are rare, usually from botched or ‘DIY’ surrogacies [Ref: American Surrogacy]. And, while no one can be certain how they will feel in the future, people can and should be trusted to enter into contracts like that of commercial surrogacy.



The feminist history of surrogacy: should pregnancy give a woman rights over a baby?
Glosswitch New Statesman 22 May 2015

Surrogacy Is About Bodily Autonomy. Feminists Should Embrace It.
Kelli Auerbach BuzzFeed News 17 July 2019

Free to make bad decisions
Ella Whelan The Critic 20 September 2021

‘I gave birth even though I never wanted children of my own’
Eleanor Katelaris kidspot 7 December 2022


The multiple moral problems of surrogacy
Tad Pacholczyk Angelus News 24 October 2016

The dark side of celebrity surrogacy
Lauren Smith spiked 15 November 2022

What Proponents of Bodily Autonomy Miss
Noelle Mering National Review 26 September 2021

End womb trafficking
Julie Bindel The Critic 16 February 2022


Surrogacy is morally wrong, reducing poor women to incubators for the rich
Susan Dalgety The Scotsman 31 March 2023

The commercial surrogacy industry is booming as demand for babies rises
Karen Gilchrist CNBC 7 March 2023

A child’s best interests, not the desires of adults, should be at the heart of surrogacy
Sonia Sodha Guardian 2 April 2023

‘We are expected to be OK with not having children’: how gay parenthood through surrogacy became a battleground
Jenny Kleeman Guardian 1 October 2022

I carried a celebrity’s longed-for baby. She treated me appallingly
Barbara McMahon Daily Mail 1 April 2023

Women aren’t “womb-carriers”
Hazel Robson The Critic 1 July 2022

Surrogacy Arrangements Act 1985
UK Government

As demand for surrogacy soars, more countries are trying to ban it
The Economist
13 May 2017

Italians travelling for surrogacy face €1m fine in plan to eliminate ‘procreative tourism’
Nick Squires Telegraph 8 February 2023

Chinese families navigate a maze of laws and COVID rules to have babies in the U.S.
Emily Feng NPR 22 October 2022

Is the rise of surrogacy deepening class divides?
Katie Tobin Huck Magazine 6 July 2022

Surrogacy: Why the world needs rules for ‘selling’ babies
Claire Fenton-Glynn BBC News 26 April 2019

The Baby Broker Project: Inside the world’s leading low-cost surrogacy agency
Simon Bowers, Malia Politzer and Naipanoi Lepapa Finance Uncovered 18 December 2022

Is surrogacy a legitimate way out of poverty?
Nayna Patel and Mohan Rao New Internationalist 1 November 2014

Becoming a parent through surrogacy can have ethical challenges – but it is a positive experience for some
Danielle Tumminio Hansen The Conversation 6 October 2021

How surrogacy is transforming medicine
Mary Harrington UnHerd 6 October 2022

UK surrogacy laws: What are the current rules?
Marie Claire Dorking Yahoo Life