In order to address the harms of commercial surrogacy, there have been recent proposals made in the UK and the Netherlands to regulate surrogacy proactively via pre-conception authorisation of surrogacy agreements (PASA).
Such a system would mean that even before conception takes place, authorities are called upon to assess contracts between the prospective parents and surrogate mother.
The purpose of laws prohibiting and restricting surrogacy is to protect women and children against commodification and exploitation. However, such laws can be – and often are – evaded by going overseas or turning to the black market.
Advocates of PASA argue that this system will ensure that the human rights and dignity of all parties are protected and that a more facilitative regulatory framework domestically will discourage citizens from accessing surrogacy overseas where the risks of exploitation are usually greater.
But in a recent article in The New Bioethics, two Dutch researchers argue that the PASA system is unlikely to offer effective protections either:
However, our analysis suggests that both promises will prove to be false.
First, proposals for PASA contradict themselves, by defending PASA as a way to discourage surrogacy tourism, while, at the same time, not only refusing to close off ‘the foreign route’, but even making it more attractive.
Second, although PASA is presented by its advocates as a more effective way of safeguarding human rights and human dignity in surrogacy arrangements, a novel normative outlook is silently being introduced, which offers less protection to surrogate mothers and surrogacy-born children.
Finally, although the assessment that is supposed to take place under PASA contains standards to make sure that surrogacy arrangements are not commercial, commodifying or exploitative in nature, the experience in Greece and South Africa suggests that authorities will nevertheless rubber-stamp arrangements of such nature.
As a net result, the system of PASA…fails to prevent citizens from engaging in international, commercial surrogacy arrangements and even facilitates these arrangements to a certain extent; and finally, is likely to introduce and facilitate commercial, commodifying and exploitative surrogacy arrangements on a national level.
The authors emphasise that “although these frameworks are presented as merely regulating something that is already taking place, they silently introduce a radically new and…highly problematic legal-ethical approach to surrogacy.”
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