A Revolution by Stealth: A Legal-Ethical Analysis of the Rise of Pre-Conception Authorization of Surrogacy Agreements

This article offers a legal-ethical analysis of recent UK and Dutch proposals to regulate surrogacy proactively through a national system of pre-conception authorization of surrogacy agreements. Within such a system, authorities are already before conception called upon to examine and assess contractual arrangements between the intending parents and the prospective surrogate mother. This regulatory approach is presented by its advocates as a win-win for all parties involved; as bringing family law in line with the changed social reality of creating families; and as maintaining a non-permissive approach toward commercial surrogacy. In this article, we critically examine these claims. Our analysis suggests that the proposed systems may result in the facilitation of surrogacy practices with commercial, commodifying and exploitative dimensions. Moreover, although these frameworks are presented as merely regulating something that is already taking place, they silently introduce a radically new and, as we shall argue, highly problematic legal-ethical approach to surrogacy.