Spain’s government has recently urged the Attorney General to investigate the operations of businesses offering surrogacy services. Despite not providing any evidence to support her claims, the Minister of Justice accused some of these businesses of child trafficking, criminal organization, money laundering, and false documentation.
Surrogacy is unlawful in Spain, although companies offering these services are perfectly legal under the current legislation, acting as intermediaries between would-be parents in Spain and surrogate mothers living in third countries where surrogacy is legal.
Spain isn’t an exception in this respect. In most European countries, surrogacy is an illegal practice, although with some exceptions when the arrangement is altruistic and doesn’t involve any compensation for the surrogate mother. Only in some Eastern European countries like Ukraine or Georgia are surrogate mothers allowed to receive money for their services.
Most objections against surrogacy (especially paid surrogacy) boil down to two ideas: commodification and exploitation. The European Parliament’s 2014 Annual Report on Human Rights and Democracy summarizes both very neatly:
[The European Parliament] condemns the practice of surrogacy, which undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity; considers that the practice of gestational surrogacy which involves reproductive exploitation and use of the human body for financial or other gain, in particular in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments.
According to the commodification argument, surrogacy implies treating women as mere commodities. When a surrogate mother agrees to conceive and bear a child, she is selling (or rather renting) her reproductive capacity, turning her body into a commodity subject to commercial transactions. This is a way of dehumanizing women and, as such, it should remain unlawful.
Let us first assume the validity of this reasoning. Surrogacy commodifies women, depriving them of their dignity as human beings. If so, one can at best argue that surrogacy is unethical or degrading. Yet this isn’t a sufficient reason to outlaw it. After all, surrogacy is an agreement willingly signed by two parties in the exercise of their freedom. Should we ban it because some deem it immoral?
Nonetheless, the main problem with the commodification argument is that it is based on the idea that buying or selling something involves treating it as an object that only has instrumental value. Yet, as noted by philosophers Jason Brennan and Peter Jaworski, this isn’t always the case:
“objects are routinely treated as commodities without the buyers or sellers considering those objects to be mere commodities. People buy and sell pets, and yet most regard these pets as having more than merely instrumental value.”
Similarly, most people don’t consider wage labor as an intrinsically dehumanizing practice that undermines human dignity. And yet, it is somehow equivalent to surrogacy: when working in a company, you’re renting out your physical or intellectual capacities in exchange for money. Neither wage labor nor surrogacy turn women into mere commodities.
The exploitation argument moves away from the abstract criticism above and focuses on the impact that surrogacy may have on surrogate mothers. Opponents argue that low-income women would be overwhelmingly affected were paid surrogacy to become legal on a global basis. This would imply that a large percent of surrogates would be poor women, who would see themselves compelled to become surrogate mothers out of financial necessity.
From a classical liberal perspective, as long as there is no coercion, there is nothing wrong about such an agreement. Yet one can think of situations when women have to become surrogates because of a lack of a better alternative. This legitimate concern can be easily addressed by establishing an income threshold under which no woman can become a surrogate mother.
However, this legal threshold would also have some disadvantages. Surrogacy services are usually very well paid. In Ukraine, for instance, surrogate mothers are paid around 14,000 euros. This represents 9 times Ukraine’s Annual Household Income per Capita or 3.6 times the average annual wage of a Ukrainian employee. This legal barrier aimed at protecting poor women would end up depriving them of a source of income that could make a difference in their lives.
In sum, neither argument is sufficiently robust to justify the ban of surrogacy. The commodification argument is merely symbolic and fails to recognize that commercial transactions don’t necessarily result in the goods or services being transacted becoming mere commodities with only instrumental value. The exploitation argument can be easily bypassed implementing the appropriate regulation.
Contrary to what anti-surrogacy advocates believe, a sensible legal framework that allows this type of contracts would help protect the rights of intended parents and surrogates alike, facilitating the emergence of a transparent and well-functioning market for surrogacy services.
 For a detailed analysis and refutation of both arguments, see Brennan, J., & Jaworski, P. M. (2015). Markets without limits: Moral virtues and commercial interests. Markets without Limits: Moral Virtues and Commercial Interests. Routledge.