Publication Type

Journal Article

Version

publishedVersion

Publication Date

11-2020

Abstract

Opposition to legalizing surrogacy often involves the argument that it commodifies or objectifies women and children. When surrogacy involves consenting parties claiming to benefit from the transaction, commodification- or objectification-based arguments seem unpersuasive. This article argues that new natural law theory offers an alternative case against legalizing surrogacy based on the violation of basic goods of human flourishing, a notion which unpacks afresh what is really at stake in the commodification/objectification arguments. Exploring the new natural law approach through John Finnis’s theory, this article suggests that the new natural law case against surrogacy hinges on the link between childbirth and raising children, which turns out to be the major bone of contention in the surrogacy debate. The establishment of the link turns on answers to empirical questions as to what is in the best interests of the child, as well as on contested notions of motherhood, raising questions of a philosophical or normative nature. This article elucidates for policy makers and legislators the precise issues they must face squarely in order to determine whether to legalize or prohibit surrogacy arrangements.

Keywords

surrogacy, human flourishing, John Finnis, natural law theory, surrogate parenthood, best interests of the child, commodification

Discipline

Family Law | Human Rights Law | Law and Gender

Research Areas

Legal Theory, Ethics and Legal Education

Publication

Journal of Legal Philosophy

Volume

45

Issue

1

First Page

49

Last Page

79

ISSN

2633-6847

Identifier

10.4337/jlp.2020.01.03

Publisher

E. Elgar

Embargo Period

7-14-2021

Copyright Owner and License

Authors

Additional URL

https://doi.org/10.4337/jlp.2020.01.03

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