Commercial surrogacy and the problem of commodification: Ethical dilemmas and a possible legal response

• Main Author: Milinković Igor
• Format: Article
• Language: English
• Published: Faculty of Law, Niš 2020-01-01
• Series: Zbornik Radova Pravnog Fakulteta u Nišu
• Subjects: assisted reproduction; surrogacy; commercial surrogacy; dignity; commodification; comparative law; bosnia and herzegovina
• Online Access: https://scindeks-clanci.ceon.rs/data/pdf/0350-8501/2020/0350-85012086091M.pdf

Infertility is a serious global reproductive health problem. According to the World Health Organization, between 7% and 15% of all couples of reproductive age in the world are infertile. Assisted reproductive techniques have enabled infertile couples to experience parenthood. Therefore, from the perspective of the reproductive autonomy realization, the application of assisted reproductive methods is indisputably justified. On the other hand, the development of new reproductive technologies raises complex ethical dilemmas. The most controversial assisted reproductive technique is surrogacy, which entails an agreement or contract by which a woman (surrogate mother) agrees to bear a child for another person or couple. Commercial surrogacy, unlike the altruistic one, implies that intended parents will pay a cash amount as to the surrogate mother, as compensation for the services provided, which exceeds the reasonable costs associated with pregnancy. The paper aims to respond to the question whether commercial surrogacy is ethically less acceptable than the altruistic one, or whether the objections to commercial surrogacy are in fact aimed at cases involving perverted practices, which could be avoided by the adoption of appropriate legal solutions. In particular, the paper focuses on the problem of commodification and its relation to the value of human dignity. As part of the analysis of this problem, the author points to the danger of developing "commodification in the broader sense" (Radin), as well as the mechanisms by which the legislator can potentially preclude this tendency. The analysis covers the solutions adopted in comparative law, as well as the relevant legal provisions in the legislation of Bosnia and Herzegovina (i.e. its entities: Republika Srpska and Federation of Bosnia and Herzegovina).