Policy Considerations For Surrogacy

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Medico-Legal Journal of Ireland

2015
Policy considerations for the legality of surrogacy
Gary Lilienthal, Nehaluddin Ahmad and Zainal Amin bin Ayub
Subject: Health. Other related subjects: Criminal law. Human rights
Keywords: False imprisonment; Human trafficking; Medical ethics; Morals and law; Negligence; Slavery;
Surrogacy
Cases: Stiver v Parker 975 F.2d 261 (6th Cir (US))

Robinson v Balmain New Ferry Co Ltd [1910] A.C. 295; [1909] 12 WLUK 60 (PC (Aus))
Herd v Weardale Steel Coal & Coke Co Ltd [1915] A.C. 67; [1914] 6 WLUK 89 (HL)
Prosecutor v Kunarac (Dragoljub) unreported 22 February 2001 (UN ICT(Yug))
*M.L.J.I. 88 Introduction
The objective of this article is to show that commercial human surrogacy is sufficiently immoral and illicit
to be suitable for a ban. This is not the first time such a position has been articulated. However, this article
examines the issue without dividing the arguments into individual jurisdictions. It looks at all the issues from
a variety of sources. Some feminists have condemned surrogacy as the medicalisation, commodification
and technological colonisation of the female body. They have argued that it was a form of slavery-induced
prostitution that emerged from the creation of a caste of female breeders, composed of non-white women,
in forced labour to gestate the embryos of the more economically well-off white population.1 Examples of
the feminist argument include that of Corea, who described human surrogacy as a reproductive brothel.2
Raymond opposed the growth of commercial reproductive clinics in developing countries that specialise in
sex determination.3 Katz Rothman posed the question: "Can we look forward to baby farms, with white
embryos grown in young, third world women?"4 This view is similarly reflected in the writings of Gupta.5
With such vehement and grave opposition to surrogacy, this article explores the question of whether
commercialsurrogacy is likely to be a criminal offence. Generally, the article attempts to show that all the
necessary and sufficient indicia of slavery exist within surrogacy. Since surrogacy is a worldwide issue,
with people seeking to avoid national restrictions by engaging in international "surrogacy tourism", we
avoid the administrative constrictions of stare decisis and black letter law, and instead examine the situation
in its naked realities. The discussion collates the views and practices of various jurisdictions, with the
objective of developing a sound policy stance.
The article will look at standardised arguments against the existence of commodification in surrogacy, in
order to assess whether they are sustainable. It will then try to link surrogacy and exploitation to sustain
an argument that surrogacy amounts to the commodification of the human body, causing abridgment of
juridical personality.6 The next link in the chain of argument will be to see whether this exploitation and
commodification satisfies the elements of the international crime of human trafficking. We hypothesise that
inducement to human trafficking by deceit is present in surrogacy.
The argument then proceeds to an examination of surrogacy and negligence, and the reader will begin to
intuit the problem as analogous to withdrawal of consent within the tort of false imprisonment. With theories
of harm within the common law tort of false imprisonment appearing to partially fail the victim, we explore
what happens to the juridical personality of the human foetus and its gestating mother, and how their loss of
juridical personality might be indicative of slavery. The moral issues are then considered in order to develop
rights-based arguments against surrogacy, because it appears that surrogacy is uncomfortably close to
breaching international norms concerning slavery. Surrogacy needs to be regulated, so the article will look
at examples of regulation, including the well-settled codified position in French law, and recent judicial
confirmation in Ireland of a surrogacy contract's unenforceable character. Finally, the argument will assess
some narrative evidence of surrogate women, in the context of the force of a claim of acted-on intention to
be a parent of a child born of a surrogate mother. The article is likely to conclude that
commercialsurrogacy is the crime of human trafficking as a form of internationally proscribed slavery, and
it ought to be exposed as such and banned.
Surrogacy and Exploitation
Wertheimer posed the question that, if women's labour ought not to be commodified, does it follow that
surrogacy is harmful to the surrogate woman? There are three possible categories. These are whether the
commodification of the surrogate's labour is (a) harmful, (b) harmful as a wrong, or (c) a wrong without
harming the surrogate.7 Commodification of women's *M.L.J.I. 89 labour is harmful to the interests of the
surrogate, even though she might not feel the harm. Objectively, a woman has an interest in not being
degraded, commodified, or treated only as a means to an end.8Surrogacy might negatively affect the way
a surrogate woman is regarded by others.9 Even if degradation or commodification inflicted objective harm
on the surrogate, it would not necessarily follow that surrogacy was harmful to the surrogate. Yet, in
comparison, in the case of trespass, a trespasser could harm the property owner merely by breaching her
right to exclude others from her property.10
This view contains a fallacy because a person deceived into paid enslavement would be harmed by the
defamatory nature of the commodification of her work, whether or not she realised it. Thus, the question
arises as to whether surrogacy might constitute enslavement. We will deal with this pressing question
further below.
The fallacy continues by the fact that many acts would be a violation of a person's rights if done without that
person's consent. However, according to Wertheimer, they would not be violations of rights if done with the
person's consent. The fallacy is that consent must be informed consent and not induced by deceit or duress.
Consent is the defence of choice for the coercer. However, we will discuss further below that commodification
is a violation of the Kantian categorical imperative, even if the commodification is truly consensual. If the
consent is contrary to some inalienable right or contrary to the common law, the same would be the case.11
First, we consider commodification without consent, because commodification necessarily will be veiled.
The Commodification of the Human Body
Commodification itself generates a range of anxieties suggesting harm. For example, scarcity of product is a
dominant concern within the rhetoric of commodification.12 It exposes links between desire, demand and
consumption.13 Organ transfers are good examples. Medical professionals and likely organ recipients search
for compatible organs ready to transplant.14
The human body itself facilitates compelling metaphorical interpretations for re-ordering the world.15
Language describing the body has shown how the body can be understood in ethical terms.16 In fact,
science and medicine have made many metaphorical constructions of the body.17 Within the context of
commodification, metaphorical thinking has a depersonalising effect. It dehumanises the human body and
its various parts. Thus, commercial interests often intentionally use forms of "semantic massage" on the
body for the purposes of commercialisation. An example is the "gift of life", applied to blood donors, organ
donors and surrogates.18 The female body was often seen as highly exploitable, while the male body was
viewed as a magnificent prototype. The male body was metaphorised as a better machine than the female
body.19
Many metaphors now underlie widespread body commodification, because objectifying the body enables
scientists to deal with and patent body tissue without any consultation with the person involved.20
Commodified bodies are now ubiquitous and veiled in metaphor.21 It can therefore be strongly inferred that
informed consent to the rigors of surrogacy is unlikely. After all, the woman might not know the specifics of
any suffering she might endure in a future pregnancy. How could she consent to unknown and unexpected,
and therefore unforeseeable, suffering? Thus, surrogates' bodies are dealt with in veiled, and therefore
deceitful, ways. Could it be that contract is the veil for any tortious harm she might suffer? If so, and
without generating a polemic with the commercial interests, it may be that the word "commercial", in the
context of surrogacy, is quite misleading, with the harmful effects of surrogacy being veiled by the
language of commerce.
Human Trafficking
The United Nations Office of Drugs and Crime defines trafficking of human beings as
"the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat, or use
of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a
person having control over another person, for the purpose of exploitation".22
From this alone, the reader might intuit that surrogacy could be the crime of human trafficking.
The outcome of international negotiations in the councils of the United Nations concerning the definition of
human trafficking comprised three elements, with victim consent being effectively eliminated as a defence
for traffickers. "Trafficking in persons" comprises:
(a) the recruiting, transporting, transferring, harbouring or receiving of people,
(b) by means of the threat or use of force or other forms of coercion, abduction, fraud, deception, the abuse
of power or positions of vulnerability, or the giving or receiving of payments or benefits to induce the
consent of a person having control over another person,
(c) for the purpose of exploitation.23
*M.L.J.I. 90 Certainly, the surrogate woman can be considered to be recruited, transferred, harboured and
received by deceitful procurement of her consent. This exploitation includes the exploitation of the
prostitution of others, other types of sexual exploitation, forced labour, slavery (or deeds similar to slavery),
servitude, or the removal of human organs.24 The UN Protocol does not define these kinds of slavery, but
from the above discussion, the surrogate woman can be considered to be sexually exploited. On issues
surrounding forced labour, we will discuss below the effect in law of the surrogate woman withdrawing her
contractual consent to be a surrogate, mid-pregnancy. We shall analyse this withdrawal in the context of
consent within the tort of false imprisonment. On the issue of removal of human organs, we note below the
remarkable similarity in French law between surrogacy and the immoral and illicit sale of human bodily
organs.
Surrogacy and Negligence
Considering the possibility of contract as a veil for tortfeasance against a surrogate, the New Jersey
Supreme Court held in the 1988 Baby M custody case that surrogate parenting contracts were void as
counter to laws governing adoption. The case was reasoned by adopting statutory definitions and norms,25
rather than taking account of plain meanings and the narrative views of surrogate women. This case
concerned the interpretation of the term "surrogate" per the Uniform Status of Children of Assisted
Conception Act, adopted in 1988 by the National Conference of Commissioners on Uniform State Laws.26
The Act defined a surrogate as "an adult woman who enters into an agreement to bear a child conceived
through assisted conception for intended parents".27 The term "intended parents" meant "a man and
woman, married to each other, who enter into an agreement … providing that they will be the parents of a
child born to a surrogate through assisted conception using an egg or sperm of one or both of the intended
parents".28
In Stiver v Parker,29 the Sixth Circuit broke new ground by considering the duties in tort owed by
surrogacy brokers and other professionals to those participating in a surrogacy program. Consider the
case fact pattern as follows.
In 1982, Mr Malahoff contracted with one of the defendants, Noel Keane, to arrange a surrogate parent
contract.30 Keane procured the plaintiff, Mrs Stiver, to bear a baby for Malahoff.31 He arranged consultations
for her with a doctor, a psychiatrist and a lawyer. Each of these professionals was already in affiliation with
the surrogacy program.32 Keane produced for signature, and Stiver signed, the surrogacy contract.33 In
the next several days, Stiver consulted again with the psychiatrist, and with another doctor who inseminated
her with Malahoff's sperm.34 The contract between Malahoff and Stiver provided for physical and genetic
testing of both the parties. However, no one ever tested Malahoff.35 Stiver bore a child with severe birth
defects. They arose from some prenatal exposure to a virus. The child suffered retardation, loss of hearing
and other neuro-muscular disorders.36 Stiver's husband later was found to be the child's natural father. The
baby was conceived when the plaintiffs engaged in unprotected intercourse before the arranged artificial
insemination.37 The plaintiffs alleged Malahoff's semen caused Stiver's exposure to the virus.38 The Stivers
alleged negligence against Keane and the four professionals affiliated with the surrogacy program.39
According to the Sixth Circuit Court, the District Court had granted the defendants' plea for summary
judgment.40 The Sixth Circuit reversed this summary judgment.41 Merritt C.J. held that, pursuant to the law
of negligence in Michigan, the defendants had a duty to act to prevent foreseeable harm to participants in
the surrogacy program.42 Merritt C.J. came to his decision by applying the general law of tort. Citing public
policy considerations, he held that the state had an interest in regulating surrogacy program professionals
via tort law. He argued that both the statute laws, such as the subsequent Michigan legislation outlawing
surrogacy agreements,43 and national policy against the sale of human organs, implied that this was more
than just "the values of the marketplace and freedom to contract, which prevail in ordinary commercial
activities".44 Grave dangers such as disease transmission sustained a state interest in regulating surrogacy
through the general law of negligence.45 The court also considered, as justifications for the regulation of
surrogacy, the possibility of any party purporting to abandon the surrogacy contract, and attempts at
placing a price on a surrogate mother's race or intelligence.46
Merritt C.J. held that the relationship between the surrogacy professionals and the participating parties had
many features in common with a relationship giving rise to an affirmative duty of protection in the law of
negligence.47 The parties "were led to rely on the broker-designer's direction and advice concerning
procedure and professionals to trust".48 Therefore, a special relationship existed, creating an affirmative
duty of protection from foreseeable harm, and a jury should decide whether the broker and other
professionals had exercised the proper level of care to protect the parties. Kennedy J. noted that, under
state law, doctors had a medical duty to "protect patients from unreasonable and foreseeable risks".49
The court's reasoning for finding this duty of care derived from the high probability of harm to the surrogate,
sufficient to mandate regulation. With contract nothing more than a defence raised by an exploiter, and tort
indicated because of a high *M.L.J.I. 91 probability of harm, the issue of consent needs investigation.
Should a surrogate woman withdraw her consent mid-pregnancy, and the arrangers decline to release her,
citing contractual consent, what can be said of the surrogate's rights to go away and have her baby? If
bound by contract, according to the commercialists, she could not go away and have her baby. Thus, let us
travel down an unorthodox road, and see how consent works within the tort of false imprisonment.
Consent and False Imprisonment
A common law world figure no less than Winfield stated the law on false imprisonment such that no tort is
committed when a person is prevented from leaving premises because s/he will not fulfil a reasonable
condition of leaving the premises, a condition to which s/he was subject upon entry.50 In support of this
proposition, he cited the Privy Council case of Robertson v Balmain Ferry Co Ltd51 and the House of Lords
case of Herd v Weardale Steel, Coal and Coke Co Ltd.52
In Robertson, the plaintiff refused to pay another penny to leave the wharf, and the defendants' employees
prevented him from leaving for around 20 minutes. Robertson sued for assault and false imprisonment. In
Herd, Herd worked as the defendants' employee in their mine. He breached his contract by refusing to work
in the mine. The defendants declined to let him use the lift to leave. The lift was the only way out. They
detained him for about 20 minutes. Herd sued the employers for false imprisonment. Winfield inferred from
Roberston that imposing a reasonable condition is a defence to the tort of false imprisonment. However,
according to Winfield, Herd's case depended on a defence of consent.53 In Robertson's case, the restraint of
liberty was incomplete, and in Herd's case, the imprisonment was by a mere omission. Thus, in both cases
there was no false imprisonment because the restrictions on liberty were only to impose reasonable
conditions for exit. The issue of unreasonable exit conditions, therefore, suggests liability in false
imprisonment.
Amos agreed with this interpretation of Herd's case,54 emphasising the contractual aspect of the exit
condition. If, by an agreement with the defendant, the plaintiff consented to his liberty being restricted, the
defendant's duty to free the plaintiff would be determined solely by contract. If he refused to release the
plaintiff, breaching the original agreement, it would not constitute the tort of false imprisonment.55 However,
the law stated in Robertson was difficult to understand.56 This was because there were good authorities to
the effect that, without statutory authorisation, no one could imprison another person to enforce a civil
claim.57 These authorities were as follows. In Clark's Case,58 a mayor was not entitled to imprison a
burgess for failing to pay fees owing to the city. In Sunbolf v Alford,59 innkeepers were not allowed to detain
a guest for failure to pay the bill. In the State of New York case of Lynch v Metropolitan Ry Co,60 the court
held that a railway company was not entitled to detain any passenger who lost his train ticket, and
subsequently refused to pay for another ticket.
Thus, at common law, no person can restrain the liberty of another person to enforce a monetary exit
condition. This kind of restraint would be false imprisonment unless statutorily authorised.61 The basis for
this proposition is that no one can forcibly imprison another to coerce conformance with any condition,
without a sustaining statutory requirement, when the other person does not consent to do so. If this
conformance is required by contract, the party can choose to abandon or breach the contract and suffer
liability for the violation. Alternatively, he may be compelled to specifically perform the condition pursuant to
a court order to that effect.
The Privy Council stated in Roberston that it was immaterial whether or not the notice at the defendants'
wharf, containing the exit condition, was brought to the knowledge of the plaintiff. This was because the
notice was immaterial.62 For this reason, consent to a temporary waiver of liberty could either be
independent of contract or could be linked to a contract. In the latter case, consent within the tort of false
imprisonment would not be wholly dependent on the contract.63
In Robertson,64 O'Connor J. in the High Court of Australia had held that the taking away of a person's liberty
is not always actionable. A person who contracts to surrender some of his liberties for a specified time
cannot subsequently complain about it. He cannot gain an immediate entitlement, unconditionally and
without regard to the other party's rights, to regain his liberty by terminating the contract. In Herd,65
Pickford J. in the Court of Appeal was not prepared to hold that miners refusing to work were entitled at any
time, despite inconvenience to the mine, to require the mine management to take them immediately back to
the surface.
Robertson and Herd could suggest the judicial creation of a defence, within the tort of false imprisonment, of
the imposition of a reasonable exit condition. However, a monetary exit condition is proscribed by common
law. The Privy Council in Robertson stated that the defendants were authorised to impose a reasonable
condition before permitting Robertson to pass through the company's turnstiles from a place where he had
gone by free will. They said that paying a penny to leave was a fair condition, without compliance to which
the defendants had no duty to let him go.66 Similarly, in Herd, the Lord Chancellor stated that it was not
false imprisonment to bind a man to the agreed conditions.67 The courts appeared to be applying a vague
doctrine of fairness.
*M.L.J.I. 92 Thus, the reader might see some difficulty in determining when consent to giving up liberty, in
the tort of false imprisonment, can be revoked in the event of some inconvenience to the restraining party.
In Herd, all of the Law Lords agreed that if Herd were in urgent or dangerous circumstances, the matter
would depend on the facts and reasonableness.
Let us reach a preliminary conclusion that the surrogate validly revoked consent. Further, let us consider
that she wanted to go away, in a state of pregnancy, and have her own baby. Finally, let us consider what
might be a reasonable exit condition for this revocation of consent. It is submitted that it would never be
reasonable to hold a pregnant woman to a commercial condition attaching to her own management of the
birth of her baby, because it breaches all the rules of human morality. Below, we will discuss relevant rules
of human morality to determine how to deal with insistent commercial interests, veiling the nature of
consent to surrogacy and its harms in the law of contract. This article chooses not to address issues of
contractual genuine consent, because the matter under consideration appears to be entirely tortious. This
raises the further relevant issue of how likely a surrogate woman would be to access the justice system,
sufficient to win a tort case. This issue of juridical personality, for both the gestating mother and for the
foetus, is further suggestive of the slave-like nature of surrogacy, and its investigation is necessary to
determine the character of surrogacy in law.
Juridical Personality of the Human Foetus
We examine juridical personality by beginning with Hohfeld's momentous work on correlativity of rights and
duties, because in the case of the foetus, there is an exception to Hohfeld's axiom. The correlativity axiom of
Hohfeld68 is that every right correlates with a duty. Stated another way, the existence of a right necessarily
entails the existence of a duty, and vice versa.69
Under traditional common law, an individual acquired legal personality upon birth. Thus, a foetus did not
have legal rights at common law. According to the correlativity axiom, for this reason, no one owed a duty
of care to a foetus. Thus, substandard conduct that injured a foetus could not be a breach of duty to that
foetus. Prenatal injuries were irrecoverable. When courts ultimately allowed recovery for injuries sustained
in utero, first for viable and then for non-viable foetuses, they usually did so through an extension of legal
personhood. To determine this personhood, they followed the latest biomedical knowledge, without needing
to challenge the correlativity axiom. The most critical stage in the expansion of pre-birth legal protection
concerned preconception misconduct. Allowing recovery for harm caused by such conduct invalidated the
correlativity axiom.70 One could not argue that preconception conduct breached a duty that correlated with
the victim's right, because the victim could have no rights prior to conception. However, in UAW v Johnson
Controls, Inc,71 White J. stated that "an increasing number of courts have recognized a right to recover
even for prenatal injuries caused by torts committed prior to conception".72 Courts have done so in various
settings.
The foetus's status as a legal person varies in many US state jurisdictions. Twenty-four states have
criminalised actions against the foetus.73 The doctrine of legal personhood is evident in laws criminalising
foeticide. In the Massachusetts case of Commonwealth v Cass,74 the court held a foetus to be a "person"
within that state's vehicular homicide statutory law.75 The court held that "[a]n offspring of human parents
cannot reasonably be considered to be other than a human being, and therefore a person, first within, and
then in ordinary course outside, the womb".76 The statute's plain meaning, combined with the
Massachusetts legislature's vehicular homicide statutory law, provided no distinction between pre-birth and
post-birth human beings,77 and constructed a rebuttable presumption that foetuses were persons.78
Three kinds of legal persons--P1, P2 and P3--represent three schools of thought about juridical personality.
P1 theorists disagree that legal personality must build on the metaphysical person. P2 scholars assume that
humanity is the genesis of moral and legal claims grounding legal personality. P3 adherents regard abstract
persons as the basis of legal personality.79
For P1 theorists, legal personality is nothing more than the formal capacity, or the ability, to carry a legal
right and therefore to participate in legal relations.80 On this P1 basis, foetuses might be regarded as
persons, their rights coalescing at birth.81 The Australian case of Watt v Rama82 recognised these
contingent rights of the foetus, suggesting that any contract containing a condition concerning the future
actions or acquiescence of a born baby might be problematic in law.83
Consider the instance where the behaviour of the unborn child, by certain movements or by other effects on
the gestating mother's body, causes the gestating mother to feel she must exercise her right to decide to
revoke her consent to continue the contract to give the baby to the commissioning parties. In these
circumstances, arguably, performance of the contract becomes impossible, and by the chain of causation,
the baby has exercised a right to remain with its gestating mother. By Hohfeld's correlativity axiom, giving
the baby to the commissioning couple, in accordance with the surrogacy contract between the gestating
mother and the putative parents, arguably would represent not just a breach of duty to the baby, but also a
denial of juridical personality to participate diligently in legal relations. *M.L.J.I. 93 Without the ability to
resist, and without recourse to diligent participation in the processes of the law, the baby in these
circumstances would be equivalent to tradable goods. This loss of juridical personality would infer the
exercise of a power attaching to a right of ownership of the baby, an inference so serious in law that slavery
must be considered directly.
Juridical Personality and Slavery
Enslavement, including forced labour,84 is regarded as one of the most heinous crimes against humanity.
The 1930 Forced Labour Convention defined forced or compulsory labour as "all work or service which is
exacted from any person under the menace of any penalty, and for which the said person has not offered
himself voluntarily".85 The Convention provided exceptions for work required by: (a) compulsory military
service, provided it is of a purely military character; (b) normal civic obligation; (c) a conviction in a court of
law; (d) cases of emergency; or (e) minor communal services performed by members of a community and
in the direct interest of the community.86
In addition, the Slavery Convention of 1926 defined slavery as follows: "Slavery is the status or condition of
a person over whom any or all of the powers attaching to the right of ownership are exercised."87 The Rome
Statute of the International Criminal Court defines enslavement as meaning "the use of any or all of the
powers attaching to the right of ownership over a person, and includes the exercise of such power in the
course of trafficking in persons, in particular women and children".88
In the 2008 Australian High Court case of R. v Tang,89 the court upheld Mr Tang's slavery conviction, Mr
Tang having unlawfully operated a brothel in Melbourne. The court based its decision on a breach of the
criminal statutory provision against slavery.90 However, it declined to take on board the more expansive
understanding of the "powers attaching to the right of ownership" that the Australian Human Rights and
Equal Opportunity Commission (HREOC) had put forward. The HREOC, as intervener, constructed its view of
the law on slavery in large part on the decision of the International Criminal Tribunal for the Former
Yugoslavia (ICTY) in Prosecutor v Kunarac.91 It identified a non-exhaustive list of 13 indicia that might infer
the exercise of a power attaching to a right of ownership. At the head of that list was the partial or total
destruction of the juridical personality of the victim.92 However, since slavery was said to have been
unknown to the English common law,93 people with slavery status, or de facto slaves, could not benefit from
manumission.94 In this way, their de facto state of slavery was irremediable.
The ICTY has heard some forced labour cases under the heading of enslavement. Enslavement comes within
art.5(c) of the Statute of the ICTY.95 Forced labour may also be prosecuted as a violation of the laws or
customs of war under art.3, or as a form of persecution pursuant to art.5(h).96 The ICTY carried out a
detailed analysis of the required elements of enslavement in Kunarac.97 The fact pattern of that case arose
from various acts of sexual abuse. The ICTY elaborated on a definition of enslavement in Kunarac.98
In Kunarac, the defendants were charged with enslavement for, among other things, detaining two girls in a
house for many months and treating them as their personal property. The girls had to do all the housework
and comply with all the defendants' sexual demands.99
The Trial Chamber had to consider the meaning of enslavement as a crime against humanity under art.5(c).
The Trial Chamber reviewed the applicable laws. These included the Slavery Convention,100 the Forced
Labour Convention,101 the Nuremberg Charter,102 decisions of the European Court of Human Rights103
(including Van der Mussele104) and the works of the United Nations International Law Commission.105 The
Trial Chamber held that enslavement is a crime in customary international law. It consists of the exercise of
any of the powers attaching to the right of ownership of a person.106 The Trial Chamber decided that
enslavement incorporates elements of forced labour and stated several factors as relevant.107
The Appeals Chamber accepted the chief thesis of the Trial Chamber that the traditional concept of slavery,
as defined in the 1926 Slavery Convention, and referred to as chattel slavery, had developed further to
include various new forms of slavery. Each of these forms also arose from the exercise of any of the powers
attaching to the right of ownership, where the right was nothing more than a claim. The Appeals Chamber
held that, in all cases, as a result of the exercise of any of the powers attaching to the right of ownership,
there was some destruction of the juridical personality of the victim. This destruction was greater in chattel
slavery, but the differences were only of degree. The Appeals Chamber held that these new forms of slavery
formed a part of enslavement as a crime against humanity under customary international law.108
From this argument, we submit that trading the baby at birth would constitute sufficient deliberate
withdrawal of juridical personality to suggest the exercise of a power of ownership over the child. This would
be a necessary and sufficent indicium of slavery. Nevertheless, surrogacy commercialists would maintain
their view, veiled in business tropes, of only running a good business, and nothing more. Thus, we need to
go beyond this and consider whether commercialists of this kind should be regulated by the state. Such an
investigation has already been done, in the Warnock Report,109 considered next. Furthermore, the matter
has *M.L.J.I. 94 been settled in French law, where surrogacy contracts are considered immoral and illicit,
and therefore not only unenforced but prohibited. However, the French position infers inherent rights of the
baby and the gestating mother only by correlation with duties. There is no express statement of rights.
Rights-Based Arguments against Surrogacy
In Warnock's article in The Listener,110 she stressed that paying for surrogacy necessarily implies that the
gestational mother of the child is merely a means to an end. This suggests that surrogacy might be a
Kantian hypothetical imperative,111 and therefore morally incorrect.
Immanuel Kant112 developed a theory based on the belief that reason is the final authority for morality.
According to Kant, a moral act is an act done for the right reasons.113 At the core of Kantian ethics is Kant's
categorical imperative--a set of universal rules stating that only the good will, a will to act solely out of a
sense of duty, has unqualified moral worth.114 Kant held that one could not undertake immoral acts, even if
the outcome were morally desirable, such as, for example, an infertile couple enjoying the love of a child
born of a surrogate.115
Kant developed a system of deontological reasoning,116 in which a moral system revolves around the
concept that the basis of morality is our shared humanity. What makes this humanity a moral trait is our
ability to have reasons for our actions. This is called practical reason, and, for this reason, the most valuable
object in Kantian philosophy is the potential to have a common good will.117 Metaphoric reasoning which
veils an immoral act of commodification of a human being would not qualify as practical reason. A good will
comes from our ability to control our actions in accordance with what Kant called the categorical
imperative.118
Kantian philosophy recognises the categorical imperative as a motive for an action derived independently of
any circumstance a situation might suggest. This differs from the hypothetical imperative, which provides
that if you want X, then simply do Y. These hypothetical imperatives are always conditional, where motive
for action arises from the ends necessary to fulfil a goal, and authorises all means necessary to achieve that
objective.119
Kant explained imperatives such that if the action is a good one, solely used as a means to something else,
the imperative is hypothetical. However, if the action is good in itself, and, for this reason, necessary for a
will that accords reflexively with reason, then the imperative is categorical.120
For Kant, a categorical imperative commands categorically, without reference to or being dependent on any
further purpose. It is concerned not with the substance of the action and its expected results, but with the
principle from which it follows. The essential good in the action comes from the prior mental disposition, no
matter what the consequences. Kant argued that only a categorical imperative could succeed as a moral
imperative.121 For this reason, for any action to be moral and to stem from a genuine good will, the motive
behind it must conform to a categorical imperative.122 Thus, a mere intention to be a parent, without
gestating the baby, would not be a categorical imperative.
According to Kant, there are two methods of forming a categorical imperative. The first is the universal
formula for the categorical imperative. This formula states that for an action to be moral, a person's maxim
for that action must be a universal law for all beings. By "maxim", Kant means a rule or principle giving the
reason for the action. In other words, actors ought to act only from principles that they can universalise. An
action might fail to universalise by either contradicting the law of nature or by contradicting the will, such
as, for example, the will of a gestating mother to revoke consent to the surrogacy contract. A contradiction
in the law of nature occurs when one cannot universalise the maxim because the maxim's precepts hinder
the action which the maxim expresses the desire to effect. A contradiction in the will occurs when one's
operative maxim might later not be a universal law for all beings.123
The second method for formulating the categorical imperative is Kant's humanity formula. It suggests that
persons must be treated as ends, rather than as mere means. Kant stated as follows: "Act in such a way
that you treat humanity, whether in your own person or in the person of any other, never merely as a means
to an end, but always at the same time as an end."124 Arguably, a surrogate mother is a mere means to
parenthood for the commissioning couple, and therefore physicians face a conflict of professional ethics.
Doctors must ask whether they are treating patients as mere means, and whether this harms the patient in
any way, including breaching her fundamental human rights.
This Kantian humanity formula requires that people must be treated always as humans, with the ability to
make their unique and autonomous choices, and utilising their practical reason. Abridging their juridical
personality would defeat this purpose. It specifically means that people are not means to an end, and
cannot be used as one might use a common tool. To use someone as a tool strips that person of dignity.
Dignity is another inviolable human trait. Thus, as a policy issue, neither Kantian method can justify
commercialsurrogacy. Therefore, public consent to legislation approving surrogacy may be
fundamentally flawed.
In her 1985 article published in The Listener, Warnock said:
*M.L.J.I. 95 "The moral repugnance [against surrogacy] stems from the thought of a woman deliberately
becoming pregnant for money knowing that she will give up her child; and from the thought of the people,
however great their longing to have children, offering her money to do this for their own ends."125
Warnock's views derive from the Kantian proposition that people should treat all others with proper respect,
treating them as ends in themselves. Treating someone merely as a means shows an absence of respect for
that person, which is morally impermissible. This Kantian position appears to underlie legislation in many
jurisdictions.126
If the possible rights-based arguments against surrogacy were assessed in the light of Warnock's claims,
this could articulate a cogent argument for legislative proscription of surrogacy.127
The word "exploitation" suggests a transaction where one party is somehow subject to the demands of
another, more powerful, person. The exploiter might have a superior power to convince, persuade or force
the exploited person to act according to the exploiter's wishes. In this way, the exploiter treats the exploited
as a means to an end, by abridging that person's liberty. Arguably, this is a violation of that person's right to
freedom, and also a violation of the right to equality.128
As commercialsurrogacy is inherently exploitative, there is a rights-based argument in support of

Warnock's views. Since surrogacy constitutes a severe violation of the rights to liberty and equality, it
ought to be regulated by a legal, non-waivable right,129 which must be communicated to medical
practitioners.
Surrogacy Regulatory Models
There are three kinds of regulatory systems, any one of which can serve to regulate surrogate motherhood.
These are: the "static" model, a "private ordering" system, and a "state regulation" model.130 The static
approach contemplates biological and social life perspectives hostile to surrogacy, responding with legal
mechanisms to prohibit or void surrogacy contracts. This static method operates in legislation in the
Australian state of Victoria. It operates in the expressions and determinations of the Comité Consultatif
National d'Ethique Pour Les Sciences de la Vie et de la Santé in France,131 and also in the views of some
United Kingdom politicians and judges.132 The private ordering model suggests a "libertarian extremity of
the free enterprise system of social ordering",133 naturally approving surrogacy contracts as ordinary
commercialism. Thus, according to this view, the general law would moderate the extremities of this
commercialism.134 Many countries, such as India and Malaysia, regulate commercialsurrogacy through
private ordering. In both countries, medical rules and provisions in codes of medical ethics have been
established to guide the medical protocols within surrogacy clinics, but they do not expressly consider the
ethics of surrogacy in itself. Direct state regulation, in the form of statute and delegated legislation,
requires no further explanation, as it can prohibit anything.
Surrogacy Agreements in French, United Kingdom and Irish Law
In France, the United Kingdom and Ireland, there have been serious doubts about the character of the
surrogacy contract. Thus, a fourth method of regulating surrogacy is through the policy of the common
law, or though policy inherent in codified law. In French discourse on surrogacy, issues concerning its
inherent absence of morality, the likelihood of commercial exploitation, and the legal enforceability of
surrogacy contracts have arisen. In these respects, Professor Sériaux, in his article in Recueil Dalloz, has
designated the mother-child relationship as ontological, a form of being, such that motherhood is an
unalterable state.135 For this reason, a woman carrying a child specifically for giving it to another person
represents a falsification of this immutable relationship.136
The formation of mercantile agencies for arranging couples' utilisation of surrogate mothers has raised fears
of commercial exploitation.137 In the United Kingdom, similar considerations led the Warnock Committee
to make recommendations based on its ethical deliberations,138 followed by the enactment of the
Surrogacy Arrangements Act 1985 to prohibit commercialsurrogacy.139 In France, the Braibant
Committee140 tried unsuccessfully in 1989 to have inserted into s.353-1 of the French Criminal Code a new
paragraph 4. This insertion would have applied criminal sanctions to any intermediary or agent in a
surrogacy contract. In addition, the Committee recommended adding a s.342-12 to the French Civil Code,
which, had it been inserted, would have voided all surrogacy contracts. Since there had been no legal
infrastructure for surrogacy contracts, jurists had questioned the validity and the enforceability of these
arrangements.141
The English courts have opined on surrogacy contracts in only a few cases, such as A v C142 and Re P
(Minors).143 However, the United Kingdom Parliament has been active in this area. Section 36 of the Human
Fertilisation and Embryology Act 1990 inserted a new s.1A into the Surrogacy Arrangements Act 1985. It
states: "No surrogacy arrangement is enforceable by or against any of the persons making it." However,
s.30 of the Human Fertilisation and Embryology Act 1990 empowered the courts to make an order for a child
to be treated in law as the child of the parties to a marriage, if the child was born to a woman other than
the wife.
*M.L.J.I. 96 In the 1989 French case of Alma Mater Association, the Cour de Cassation considered the
question of the lawfulness of establishing an agency for recruiting women for surrogate pregnancies, and
arranging for couples to use a surrogate mother.144 The agency was a non-profit association under the
French Law of Association of 1 July 1901. The Alma Mater Association claimed that it paid money only to
reimburse and compensate surrogate mothers' expenses and hardship. However, the Marseille Public
Prosecutor disagreed and applied to the Tribunal de Grande Instance for the Alma Mater Association to be
dissolved because it had an immoral and illicit purpose.145
The application succeeded on appeal.146 Both courts considered the legality of surrogacy under French law
as a threshold issue. They held that making arrangements for conceiving a baby to give it away was both
illicit and immoral. This was grounded in art.1128 of the French Civil Code, prohibiting any transaction
involving things that are "hors du commerce".147 It was also grounded in arts 311-9 and 376 of the French
Civil Code, stating that a person cannot transfer parental rights or duties to any other person.
The Cour de Cassation tried to settle the question of the validity of surrogacy agreements in the 1991 case
of Procureur General v Madame X.148 The Court of Appeal had held in 1990 that surrogacy, as womb
leasing, fitted within those organ donations permitted by French law, provided they were not in return for
payment of money.149 This judgment of the Court of Appeal was referred to the Full Assembly of the Cour
de Cassation to consider the matter within the "pourvoi dans l'interit de la loi".150 There was no argument
about the surrogacy agreement, but the Cour de Cassation quashed the 1990 decision of the Court of
Appeal of Paris.151 The Cour de Cassation held, quite momentously, that all surrogacy arrangements were
illegal because they were a kind of disposal of the human body, not authorised by law, and against public
policy. Thus, it was clear that French law possessed sufficient powers to void surrogacy agreements ab
initio, without added legislation.152 Furthermore, these agreements were illicit. Although one case
concerned the law on association and the other the law of adoption, the Cour de Cassation based both its
decisions on unified rules of civil law, suggesting any analogy of surrogacy with sale of human body organs
would represent an immoral and illicit kind of sale.153
The 2014 Irish case of MR and DR (suing by their father and next friend OR) v An t-Ard-Chláraitheoir154
involved an application by the genetic mother, pursuant to a surrogacy contract, to be registered under
s.63 of the Civil Registration Act 2004 as the mother of the twins born pursuant to the surrogacy
contract.155 The case confirmed the unenforceable nature of a surrogacy contract in Ireland. The High
Court held that there was a European consensus in relation to the applicability of the irrebuttable
presumption of mater semper certa est,156 as the appropriate point of departure in relation to dealing with
surrogacy questions.157 The High Court held that where a jurisdiction had legislated to declare surrogacy
contracts illegal, the maxim mater semper certa est would be an irrebuttable presumption regardless of its
statutory enactment. The only weakness of the surrogacy contract under Irish legislation or in the Irish
common law was that the surrogacy contract's performance would not be enforceable by any court.158 The
High Court granted a declaration that the genetic mother was the mother of the twins, pursuant to s.35(8)
(b) of the Status of Children Act 1987, and was entitled to have the register amended accordingly.159 In the
appeal to the Supreme Court, the court held that the words constituting the Roman legal maxim mater
semper certa est were not the basis of Irish law on the issue before the court. The words simply recognised
a fact existing in past times--that a birth mother was both the gestational and the genetic mother. This was
the factual situation until recent scientific and medical advances.160 Except for the issue of mater semper
certa est, the Supreme Court allowed the appeal and quashed the orders of the High Court.161 This case
confirmed the law in Ireland that surrogacy contracts could not be enforced in a court.
CommercialSurrogacy--The Surrogacy Industry
We now look at some evidence of what has been going on in surrogacy clinics run as commercial
enterprises. Pande conducted a study of commercialsurrogacy in the Indian city of Anand--a city of about
100,000 people in the western state of Gujarat.162 It showed how the surrogate women resisted their work
as surrogates, sufficient to suggest that their consent to surrogacy had never been entirely genuine. They
spoke of their personal experiences of surrogacy in order to ameliorate the stigma attaching to it. They
resisted their subordinate position assigned to them in the dominant discourse,163 arguably, that of the law
of contract.
Women in India working as gestational surrogates toil in a stigmatised kind of work. According to Pande,
they convince themselves they are engaged in emotional and ideological work to counter the effects of that
stigma and the perception of commercialsurrogacy as a form of "dirty work".164 Bodily signals deviating
from the socially ordinary could be very discrediting.165 The term "dirty work" means any work the public
might likely perceive as degrading.166 Pande collated the relevant scholarly works.167 She noted that work
could be dirty because people view it as physically repugnant, because it damages dignity through overly
servile behaviour, or because it offends against moral imperatives, as might sex work or surrogate *M.L.J.I.
97 mothering.168 When people work in stigmatised jobs that spoil their public persona, they do remedial
work to neutralise the stigma.169
These views indicate grave breaches of international norms. The International Labour Organization's Decent
Work Agenda combines access to full and productive employment with rights while at work, social protection
and the promotion of social dialogue.170 The Convention on the Rights of the Child stipulates that States
parties "shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of,
the sale of or traffic in children for any purpose or in any form",171 and that "they shall protect the child
against all other forms of exploitation prejudicial to any aspects of the child's welfare".172 It appears all
these norms are breached by commercialsurrogacy.
Possibly in responding to this stigma of non-decent work, the inevitable remedial responses constitute
resistance to other subjections as female workers. Thus, women working as surrogates inevitably contest
their assigned status while trying to neutralise the stigma attaching to the dirty work of surrogacy.173
Scott critiqued theories of conflict by examining the struggles of the dominated. This has produced
derivative scholarship suggesting subtle forms of subversion among workers, including nannies, domestic
servants and factory workers.174 Their acts of resistance are usually so small that they cannot overthrow
systems, or develop ideologies for their emancipation.175 No doubt this leads their masters to believe the
workers function well and by consent.
An increasing number of "medical tourists" to Anand are going there specifically for in vitro fertilisation.176
Foreign couples engaging Anand surrogates make substantial savings. In Canada or the United States,
surrogacy costs from $30,000 to $70,000. However, in Anand couples pay no more than $20,000. Clients
hiring Anand surrogates feel they benefit from the clinic's several hostels, both nearby and above the clinic,
where the clinic maintains constant surveillance of the surrogates during pregnancy. In India, surrogacy is
not regulated by legislation. The 2005 medical standards issued by the Indian Council of Medical Research
guide the surrogacy clinics. The Indian Ministry of Health and Family Welfare recently introduced a Bill to
regulate surrogacy in India. The Assisted Reproductive Technology Regulation Bill and Rules, 2008, if
enacted into law, would constitute one of the world's most favourable laws regulating surrogacy. The
Assisted Reproductive Technology Regulation Bill and Rules, 2008, would make contracts for surrogacy
legally enforceable.177 This legislation has remained in limbo.
In Anand, the physicians, nurses and agents actively recruit women from neighbouring villages for the
purposes of surrogacy. The clinic physician, Dr Usha Khanderia, the owner of Hope Maternity Clinic, stated:
"There may be surrogacy clinics all over the state, the country, and the world, but these people do sporadic
surrogacy. No one in the world can match our numbers. 55 surrogates successfully pregnant at the same
time."178
The Indian Council of Medical Research Guidelines state that fertility clinics ought not take part in the
recruitment of surrogates. They must not participate in the financial arrangements between the surrogate
and the commissioning couple. However, Dr Khanderia actively recruited surrogates, reviewed their medical
history, set up the written contract and bank accounts for payment, kept the surrogate under constant
surveillance during her pregnancy, and acted as doctor to deliver the baby. Most women working as
surrogates earn $3,000. This amounts to four to five years of household income for them,179 a sufficient
financial incentive to possibly constitute undue influence.180
The scholarship on the globalisation of factory work has looked at how Third World female workers are made
disposable by talking them down.181 The Anand surrogates were told again and again that they served only
as the baby's vessel. However, surrogates resisted this disposability discourse. Some surrogates recited their
distinctive attributes that induced couples to choose them over other surrogates. Other surrogates described
their hiring couple's unique qualities and the extraordinary personal bond with them,182 resisting the mere
commercial and contractual character of their relationships.
The remoteness from lawful regulation in Anand, and doctors' adherence to commercial rules of business,
has led to the creation of an exploitative surrogacy industry. Arguably, these gestating women are
subjected to human trafficking. In international law, cross-border surrogacy transactions of this type could
ground a cause of action in the International Court of Justice, with one state alleging slavery and human
trafficking against the other. But such actions have not taken place. As discussed, the realities have been
veiled. A commissioning couple expresses happiness with watching another woman have their baby.
Arguably, the situation is no different from the couple watching her plough their field, and giving thanks that
through their good intentions they were able to farm their land.
The Intention to be a Parent
The issue of the intention of the commissioning parents has arisen in law, arguably veiling the realities of
surrogacy by adopting a property theory of surrogacy. Section 27 of the UK Human Fertilisation and
Embryology Act 1990 provides that the "woman who is carrying or has carried a child as a result of the
placing in her of an embryo or of sperm and eggs, and *M.L.J.I. 98 no other woman, is to be treated as
the mother of the child". To the contrary, in the American case of Johnson v Calvert,183 the Supreme Court
of California held that when an embryo formed from the gametes of a couple intending to raise the baby was
implanted in another woman to carry and give birth to it, the legal mother of the child was the genetic
mother.
The Johnson case was an example of womb leasing, also known as gestational surrogacy. The
commissioning mother was Crispina Calvert. Previously, she had a hysterectomy. She could not bear a child
but nevertheless produced eggs. The surrogate was Ms Anna Johnson. She offered to carry a child as a
surrogate for Anna and her husband, Mark. The commissioning parties agreed that they would pay the
surrogate $10,000 to carry the baby. Crispina Calvert's egg was fertilised in vitro with her husband's sperm
and implanted into Anna Johnson. She carried the baby to term and gave birth to a boy. During Anna
Johnson's pregnancy, she sought to revoke her consent to give the baby to the Calverts. Both sides applied
for a court declaration as to parentage of the child. The court preferred the claim of the genetic mother. This
declaration was not a preference for the blood tie, per prior decisions in the lower courts.184
The court developed its argument by applying an intention test. Panelli J. gave the majority's judgment. He
stated that the commissioning parents affirmatively intended the child's birth. They took necessary steps for
in vitro fertilisation. Applying a negative causation test, the court said that, "but for their intention", which
they acted on, the child would not have existed. The court said that the parties' agreed objective was to give
birth to Mark and Crispina's child. They had no such intent to gift a zygote to Anna. The court recognised
Anna's gestation function as necessary for the birth. However, the court suggested Anna would never have
been given the zygote to gestate if she had disclosed her intent to be the child's mother. The court deduced
that the woman who intended to bring about the birth of a child for her to raise was, in Californian law, the
natural mother.185 The idea of womb leasing, the idea of ascribing a human being's existence to the
intention of an owner, and the consequent imagining of the commissioning woman as the mother, are
indistinguishable from theories of slavery. The court unwisely imagined hypothetical human sexual
behaviour. This piece of legal reasoning, predicated on the abridged juridical personality of the gestating
mother, is a further necessary and sufficient indicium of slavery. Since, as already discussed, slavery is not
known to the common law,186 the slave cannot be manumitted. Thus, the enslavement is veiled in a theory
of intention to manufacture and maintain property interests. Arguably, this amounts to an exercise of a
power attaching to a right of ownership over a human being.
Conclusion
The objective of this article was to show that commercial human surrogacy is sufficiently immoral and
illicit to be suitable for a ban. It asked whether commercialsurrogacy is likely to be a criminal offence,
and tried to show that all the necessary and sufficient indicia of slavery exist within surrogacy.
The argument that a woman enters into a surrogacy contract with genuine consent is unsustainable.
Genuine consent to be pregnant is beyond human conscious control. No woman can possibly know what the
rigours of a pregnancy will hold for her, and how she might react to them. No woman can know how she
might feel about the baby after a few months of gestation. Thus, genuine consent in contract is
meaningless.
The operation of surrogacy clinics tends to commodify the surrogacy process. A person deceived into paid
enslavement is harmed by the defamatory nature of the commodification of her work, whether or not she
realises it. The woman might not know the specifics of any unforeseeable suffering she might endure in a
future pregnancy. Surrogates' bodies are dealt with in veiled and deceitful ways, and these mothers are
recruited, transferred, harboured and received by deceitful procurement of their consent. Surrogate women
are sexually exploited. Thus, they are trafficked, in breach of the transnational crime of human trafficking.
Theories of contract in surrogacy are little more than dubious defences raised by exploiters, veiling the true
nature of the exploitative relationship. Should the surrogate woman withdraw her consent mid-pregnancy,
and the arrangers decline to release her, citing her genuine contractual consent, she cannot go away and
have her baby. This is analogous to false imprisonment. Arguably, it would never be reasonable to hold a
pregnant woman to a commercial monetary condition attaching to her own management of the birth of her
baby. This insistence would breach all the rules of human morality. The baby would be equivalent to tradable
goods, and so would the gestating mother. This loss of juridical personality would infer the exercise of a
power attaching to a right of ownership over the baby. This would be a necessary and sufficent indicium of
slavery.
As commercialsurrogacy is inherently exploitative, there is a rights-based argument in support of
Warnock's views in favour of proscription by regulation through a legal, non-waivable right.187 French law
possesses sufficient powers to void surrogacy agreements ab initio,188 suggesting any similarity between
surrogacy and the sale of human bodily organs represents an immoral and illicit kind of sale.189
Furthermore, the codified norms within French law describe surrogacy as illicit per se. In Ireland, the
surrogacy contract has *M.L.J.I. 99 been confirmed as unenforceable, adding weight to the view that
surrogacy issues rest primarily in tort and in the criminal law.
The remoteness from lawful regulation in Anand, and doctors' adherence to commercial rules of business,
has led to the creation of an exploitative surrogacy industry. This is human trafficking. In international law,
cross-border surrogacy transactions of this type could ground a cause of action between states in the
International Court of Justice.
The idea of womb leasing--suggestive of a property theory applying to the gestating mother's womb--is
repugnant because it assigns to the human womb the status of goods circulating in commerce. The idea of
ascribing a human being's existence to the intention of a commissioning owner is indistinguishable from
theories of slavery. This kind of legal reasoning is predicated on the abridged juridical personality of the
gestating mother and the baby. In California, it appears the courts are prepared to so abridge these juridical
personalities. This implies a further necessary and sufficient indicium of slavery. It runs contrary to the
codified positions in French law, as it would similarly in other civil law jurisdictions. It would likely induce
cross-border commercialsurrogacy trade.
In the context of this abridged juridical personality, since slavery is not known to the common law,190 a
slave cannot be manumitted, and the enslavement would continue unabated, while veiled in a theory of
intention to manufacture property. Arguably, this amounts to an exercise of a power attaching to a right of
ownership over a human being. Commercialsurrogacy should be prevented in law by way of a legal, non-
waivable right of the gestating mother to keep the baby without either penalty or liquidated damages.
Corresponding author. Email: ahmadnehal@yahoo.com.
M.L.J.I. 2015, 21(2), 88-102
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26. Uniform Status of Children of Assisted Conception Act, 9B U.L.A. I22 (Supp. 1992).
27. Uniform Status of Children of Assisted Conception Act, 9B U.L.A. I22 (Supp. 1992), §I(4).
28. Uniform Status of Children of Assisted Conception Act, 9B U.L.A. I22 (Supp. 1992), §I(3).
29. 975 F.2d 261 (6th Cir. 1992).
30. 975 F.2d 261 (6th Cir. 1992) at 266.
31. 975 F.2d 261 (6th Cir. 1992) at 266.
32. 975 F.2d 261 (6th Cir. 1992) at 265-266.
33. 975 F.2d 261 (6th Cir. 1992) at 266.
34. 975 F.2d 261 (6th Cir. 1992) at 266.
35. 975 F.2d 261 (6th Cir. 1992) at 265, 268.
36. 975 F.2d 261 (6th Cir. 1992) at 263.
37. 975 F.2d 261 (6th Cir. 1992) at 266.
38. 975 F.2d 261 (6th Cir. 1992) at 264.
39. 975 F.2d 261 (6th Cir. 1992) at 264.
40. 975 F.2d 261 (6th Cir. 1992) at 273.
41. 975 F.2d 261 (6th Cir. 1992).
42. 975 F.2d 261 (6th Cir. 1992) at 272.
43. See Michigan Compiled Laws Annual, §722.859(I) (West Supp. 1992).
44. 975 F.2d 261 (6th Cir. 1992) at 270.
45. 975 F.2d 261 (6th Cir. 1992) at 269.
46. 975 F.2d 261 (6th Cir. 1992) at 269-270.
47. 975 F.2d 261 (6th Cir. 1992) at 271-272.
48. 975 F.2d 261 (6th Cir. 1992) at 271-272.
49. 975 F.2d 261 (6th Cir. 1992) at 274.
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51. [1910] A.C. 295.
52. [1915] A.C. 67.
53. P.H. Winfield, A Textbook of the Law of Tort, 4th edn (London: Sweet & Maxwell, 1948), pp.219-220.
54. M. Amos, "A Note on Contractual Restraint of Liberty" (1928) 44 Law Quarterly Review 464.
55. M. Amos, "A Note on Contractual Restraint of Liberty" (1928) 44 Law Quarterly Review 464 at 464.
58. 5 Co. Rep. 64.
59. 3 M. & W. 284.
60. 90 N.Y. 77.
61. United Kingdom statutory authority apparently existed in 1978 to arrest someone who obtained goods or services dishonestly and set off without
payment: "Subject to subsection (3) below, a person who, knowing that payment on the spot for any goods supplied or service done is required or
expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall
be guilty of an offence" (Theft Act 1978 s.3).
62. [1910] A.C. 295 at 299.
63. K.F. Tan, "A Misconceived Issue in the Tort of False Imprisonment" (1981) 44(2) Modern Law Review 166 at 168.
64. (1906) 4 C.L.R. 379 at 388-389 per O'Connor J.
65. [1913] 3 K.B. 771 at 775 per Pickford J.
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67. [1915] A.C. 67 at 72.
68. W.N. Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913) 23(1) Yale Law Journal 16.
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70. R. Perry, "Correlativity" (2009) 28(6) Law and Philosophy 537 at 582.
71. 499 US 187 (1991).
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74. 467 N.E.2d 1324 (Mass. 1984).
75. 467 N.E.2d 1324 (Mass. 1984) at 1324-1325.
76. 467 N.E.2d 1324 (Mass. 1984) at 1325.
77. 467 N.E.2d 1324 (Mass. 1984) at 1326.
78. D. Fagundes, "What We Talk about When We Talk about Persons: The Language of a Legal Fiction" (2001) 114(6) Harvard Law Review 1745 at
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79. N. Naffine, "Who Are Law's Persons: From Cheshire Cats to Responsible Subjects" (2003) 66(3) Modern Law Review 350.
80. N. Naffine, "Who Are Law's Persons: From Cheshire Cats to Responsible Subjects" (2003) 66(3) Modern Law Review 350.
81. J. Seymour, Childbirth and the Law (Oxford: Oxford University Press, 2000).
82. [1972] V.R. 353.
83. For example, s.35 of the Contracts Act 1950, Act 136 (Malaysia) contained a relevant provision. The rule stated: "If the future event on which a
contract is contingent is the way in which a person will act at an unspecified time, the event shall be considered to become impossible when such
person does anything which renders it impossible that he should so act within any definite time, or otherwise than under further contingencies."
84. International Labour Office, Forced Labour and Human Trafficking: Casebook of Court Decisions (Geneva: ILO, 2009), p.3.
85. The Forced Labour Convention, 1930 (No. 29), art.2, para.1.
86. The Forced Labour Convention, 1930 (No. 29), art.2, para.2.
87. Slavery Convention of 1926, art.1.
88. The Rome Statute of the International Criminal Court, art.7(2)(c).
89. (2008) 237 C.L.R. 1.
90. Criminal Code 1995 (Australia), s.270.
91. Prosecutor v Kunarac, Case No. IT-96-23 (22 February 2001).
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93. Sir William Blackstone, Blackstone's Commentaries Vol.III (Philadelphia: William Young Birch, 1883), p.79.
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Young Birch, 1883), pp.95, 97 and 400.
95. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed
in the Territory of the Former Yugoslavia since 1991, U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security
Council on 25 May 1993, U.N. Doc. S/RES/827 (1993).
96. Article 5 deals generally with "crimes against humanity". Both "enslavement" and "persecution" are listed there. Article 3 deals with violations of
the laws and customs of war. Slavery has been held to be a violation of customary international law: Prosecutor v Krnojelac, case no. IT-97-25-T,
15 March 2002, Trial Chamber, paras 352-353.
97. Prosecutor v Kunarac, Case No. IT-96-23 (22 February 2001).
98. Prosecutor v Kunarac, Case No. IT-96-23 (22 February 2001) and Case No. IT-96-23-A (12 June 2002) (Appeals Chamber); International Labour
Office, Forced Labour and Human Trafficking: Casebook of Court Decisions (Geneva: ILO, 2009), p.19.
99. International Labour Office, Forced Labour and Human Trafficking: Casebook of Court Decisions (Geneva: ILO, 2009), p.19.
100. Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926.
101. Convention concerning Forced or Compulsory Labour (entry into force: 1 May 1932).
102. Charter of the International Military Tribunal - Annex to the Agreement for the prosecution and punishment of the major war criminals of the
European Axis, 1945.
103. See European Court of Human Rights, Guide on Article 4 of the Convention: Prohibition of Slavery and Forced Labour (2014).
104. Van der Mussele v Belgium, App. no. 8919/80, [1983] ECHR 13 (23 November 1983).
105. See the Statute of the International Law Commission, 1947.
106. Kunarac (Trial Chamber), para.539.
107. Elements of control and ownership: the restriction or control of an individual's autonomy, freedom of choice or freedom of movement; the accruing
of some gain to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example: the
threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim's position of
vulnerability; detention or captivity; psychological oppression or socio-economic conditions. Further indications of enslavement include:
exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving
physical hardship, sex, prostitution and human trafficking. International Labour Office, Forced Labour and Human Trafficking: Casebook of Court
Decisions (Geneva: ILO, 2009), p.20.
108. Kunarac (Appeals Chamber), para.117.
109. Department of Health and Social Security, Report of the Committee of Inquiry into Human Fertilisation and Embryology, Cmnd. 9314 (London: Her
Majesty's Stationery Office, 1984).
110. M. Warnock, "The surrogacy scandal", The Listener, 24 January 1985.
111. I. Kant, Groundwork and the Metaphysics of Morals (translated and analysed by H.J. Paton) (New York: Harper Collins, 1964), p.414.
112. 1724-1804.
113. A. Lovell and C. Fisher, Business Ethics and Values (London: Prentice Hall, 2002), p.314.
114. L. Pojman (ed.), Deontological Ethics, Moral Philosophy (Indianapolis: Hackett Publishing Company, 1998), p.194.
115. O. McLeod and L. Pojman, "The Case Against Strong Affirmative Action" (1998) 12(1) International Journal for Applied Philosophy 97.
116. The word "deontology" derives from the Greek words for duty (deon) and science, or study (logos). In contemporary moral philosophy, deontology
is a normative theory regarding which choices are morally required, forbidden, or permitted. In other words, deontology falls within the domain of
moral theories that guide and assess our choices of what we ought to do (deontic theories), in contrast with aretaic (virtue) theories that--
fundamentally, at least--guide and assess what kind of person (in terms of character traits) we are and should be. Within that domain,
deontologists--those who subscribe to deontological theories of morality--stand in opposition to consequentialists: "Deontology", Stanford
Encyclopedia of Philosophy, available at: http://plato.stanford.edu/entries/ethics-deontological/> [last accessed 3 January 2015].
119. I. Kant, "Good Will, Duty, and the Categorical Imperative" in A. Serafini (ed.), Ethics and Social Concern (New York: Paragon House Publishers,
1989), p.29.
122. I. Kant, "Good Will, Duty, and the Categorical Imperative" in A. Serafini (ed.), Ethics and Social Concern (New York: Paragon House Publishers,
1989), p.29.
123. M. Sandel, Justice: What's the Right Thing to Do? (London: Penguin, 2009), p.142.
125. M. Warnock, "The surrogacy scandal", The Listener, 24 January 1985.
126. M. Hall, "Rights and the Problem of Surrogate Parenting" (1985) 35(141) The Philosophical Quarterly 414 at 415.
130. B. Dickens, "Surrogate Motherhood: Legal and Legislative Issues" in A. Milunsky and G.J. Annas (eds), Genetics and the Law III (New York:
Plenum, 1985), pp.19-26; W. Wadlington, "Artificial Conception: The Challenge for Family Law" (1983) 69(3) Virginia Law Report 465.
131. Comité Consultatif National d'Ethique pour les sciences de la vie et de la santé, "Avis sur les problèmes éthiques nés des Techniques de
Reproduction Artificielle" (Rapport, 1984-10-23).
132. D. Morgan, "Who to Be or Not to Be: The Surrogacy Story" (1986) 49(3) Modern Law Review 358 at 359.
133. B. Dickens, "Surrogate Motherhood: Legal and Legislative Issues" in A. Milunsky and G.J. Annas (eds), Genetics and the Law III (New York:
Plenum, 1985), pp.19-26.
134. D. Morgan, "Who to Be or Not to Be: The Surrogacy Story" (1986) 49(3) Modern Law Review 358 at 360.
135. A. Sériaux, "Droit naturel et procréation artificielle: quelle jurisprudence?" (1985) 10 Recueil Dalloz 53.
136. According to arts 319 and 341 of the French Civil Code, the woman giving birth should, for all purposes, be regarded as the mother of the child.
137. Association Les Cigognes v Commissaire de la République du Bas-Rhin, Tribunal Administratif of Strasbourg, 17 June 1986 (D.1988, J.304) and
Conseil d'État, 22 January 1988, D.1988, I.R., p.45.
138. See the Warnock Report, paras 8.17 and 8.18.
139. Surrogacy Arrangements Act 1985 s.2.
140. M. Braibant was President of the Rapport et Études division of the Conseil d'État.
141. E. Steiner, "Surrogacy Agreements in French Law" (1992) 41(4) International and Comparative Law Quarterly 866 at 867.
142. [1985] F.L.R. 445.
143. [1987] 2 F.L.R. 421.
144. Cass. Civ. 1, 13 December 1989, D.1990, J.273.
145. Cass. Civ. 1, 13 December 1989, D.1990, J.273.
146. Trib. de Gr. Inst. de Marseille, 16 December 1987, and Court of Appeal of Aix-en-Provence, 29 April 1988.
147. Article 1128: "Only things which circulate in commerce may be the object of agreements."
148. Cass. Ass. Plénière, 31 May 1991, J.417.
149. Law of 21 July 1952 on blood donation (arts L.666 and L.673 of the Code de la Santé Publique); Law of 22 December 1976 on organ
transplantation (art.3); Law of 20 December 1988 on medical trials on human beings (art.L.209-8 of the Code de la Santé Publique).
150. If the parties fail to challenge the decision given by the lower court before the Cour de Cassation, the Procureur General can refer the case to the
Cour if he considers the law has been applied incorrectly.
151. Paris, 15 June 1990, D.1990, J.541.
154. [2014] IESC 60.
155. [2014] IESC 60 at para.11.
156. The mother is always certain.
157. [2014] IESC 60 at para.105.
158. [2014] IESC 60 at para.105.
159. [2014] IESC 60 at para.15.
160. [2014] IESC 60 at para.115.
161. [2014] IESC 60 at para.199.
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at 294.
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165. E. Goffman, Stigma: Notes on the Management of Spoiled Identity (Englewood Cliffs, N.J.: Prentice Hall, 1963).
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171. Article 35 of the Convention on the Rights of the Child.
172. Article 36 of the Convention on the Rights of the Child.
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175. J. Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven: Yale University Press, 1985); N. Pun, Made in China: Women
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at 295.
180. Latham C.J. stated in the Australian High Court case of Johnson v Buttress (1936) 56 C.L.R. 113 at 119, that the presumption of undue influence
arises when "the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the
trust and confidence reposed in the latter".
181. G. Chang, Disposable Domestics: Immigrant Women Workers in the Global Factory (Cambridge: South End Press, 2000); M.W. Wright, Disposable
Women and Other Myths of Global Capitalism (New York: Routledge, 2006).
at 304.
183. (1993) 5 Cal. 4th 84, Cal LEXIS 2474.
184. See Anna J v Mark C (1991) 286 Cal. Rptr 369.
185. (1993) Cal LEXIS 2474, pp.16-17.
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Policy Considerations For Surrogacy

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9/9/2019 Delivery | Westlaw India

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© 2019 Thomson Reuters South Asia Private Limited

Medico-Legal Journal of Ireland

Policy considerations for the legality of surrogacy

Gary Lilienthal, Nehaluddin Ahmad and Zainal Amin bin Ayub

Subject: Health. Other related subjects: Criminal law. Human rights

Cases: Stiver v Parker 975 F.2d 261 (6th Cir (US))

Surrogacy and Exploitation

right to exclude others from her property.10

The Commodification of the Human Body

(a) the recruiting, transporting, transferring, harbouring or receiving of people,

(c) for the purpose of exploitation.23

Surrogacy and Negligence

placing a price on a surrogate mother's race or intelligence.46

Consent and False Imprisonment

imprisonment would not be wholly dependent on the contract.63

Juridical Personality of the Human Foetus

Juridical Personality and Slavery

manumission.94 In this way, their de facto state of slavery was irremediable.

Rights-Based Arguments against Surrogacy

In her 1985 article published in The Listener, Warnock said:

As commercialsurrogacy is inherently exploitative, there is a rights-based argument in support of

Surrogacy Regulatory Models

Surrogacy Agreements in French, United Kingdom and Irish Law

CommercialSurrogacy--The Surrogacy Industry

financial incentive to possibly constitute undue influence.180

The Intention to be a Parent

As commercialsurrogacy is inherently exploitative, there is a rights-based argument in support of

Corresponding author. Email: ahmadnehal@yahoo.com.

M.L.J.I. 2015, 21(2), 88-102

3. J. Raymond, Women as Wombs (Melbourne: Spinifex, 1994), pp.143-144.

6. The ability to participate in the legal process, i.e. to sue or be sued.

25. In re Baby M, 537 A2d 1227 (NJ 1988).

29. 975 F.2d 261 (6th Cir. 1992).

30. 975 F.2d 261 (6th Cir. 1992) at 266.

31. 975 F.2d 261 (6th Cir. 1992) at 266.

32. 975 F.2d 261 (6th Cir. 1992) at 265-266.

33. 975 F.2d 261 (6th Cir. 1992) at 266.

34. 975 F.2d 261 (6th Cir. 1992) at 266.

35. 975 F.2d 261 (6th Cir. 1992) at 265, 268.

36. 975 F.2d 261 (6th Cir. 1992) at 263.

37. 975 F.2d 261 (6th Cir. 1992) at 266.

38. 975 F.2d 261 (6th Cir. 1992) at 264.

39. 975 F.2d 261 (6th Cir. 1992) at 264.

40. 975 F.2d 261 (6th Cir. 1992) at 273.

41. 975 F.2d 261 (6th Cir. 1992).

42. 975 F.2d 261 (6th Cir. 1992) at 272.

44. 975 F.2d 261 (6th Cir. 1992) at 270.

45. 975 F.2d 261 (6th Cir. 1992) at 269.

46. 975 F.2d 261 (6th Cir. 1992) at 269-270.

47. 975 F.2d 261 (6th Cir. 1992) at 271-272.

48. 975 F.2d 261 (6th Cir. 1992) at 271-272.

49. 975 F.2d 261 (6th Cir. 1992) at 274.

51. [1910] A.C. 295.

52. [1915] A.C. 67.

58. 5 Co. Rep. 64.

59. 3 M. & W. 284.

60. 90 N.Y. 77.

62. [1910] A.C. 295 at 299.

64. (1906) 4 C.L.R. 379 at 388-389 per O'Connor J.

65. [1913] 3 K.B. 771 at 775 per Pickford J.