The Right to Dignity of the Surrogate Mother

• Autore: Nensi Sinanaj
• Carica: University of Milan - Bicocca. Côte d'Azur University
• Pagine: 261-286

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Received: 18 Jan. 2021 | Accepted: 23 Mar. 2021 | Published: 24 Jan. 2022

A

The Right to Dignity of the Surrogate Mother

N

ENSI

S

INANAJ

Nensi Sinanaj LL.B. (Dresden University of Technology), LL.M. in International Law and

Sustainable Development (University of Milan), Ph.D. Candidate in Public, European and

International Law (double Doctorate: University of Milan-Bicocca, Côte d’Azur University). Her

Ph.D research concentrates on the interplay between the international rule of law and the

internal legal order. Her research interests include International Human Rights Law focusing

upon the narratives of International Human Rights Courts and the relation between the Rule of

Law and human rights protection. Previously, Nensi Sinanaj has participated in projects for the

United Nations Development Programme and the Helsinki Human Rights Committee covering

matters of strengthening the rule of law and human rights in Western Balkans.

@sinanajnensi1@gmail.com

ID 0000-0001-6069-2596

ABSTRACT

This article explores a different perspective on the right to dignity of the surrogate mother in

commercial surrogacy arrangements under international human rights norms and philosophical

principles. Here, I examine the concept of human dignity under the lenses of contemporary legal

theory reflecting on the right to self-determination of the surrogate mother. This dignity-based

approach serves for analysing how International Human Rights Law enables women to enter

commercial surrogacy agreements on the basis of their contractual freedom, their reproductive

rights, on the prohibition of non-discrimination and their labour rights. Under the lenses of

economics and law, I examine how this practice carries the potential to empower the economic

emancipation of women and their access to the labour market. Dignity as rights-constraining will

reflect on the other side of surrogacy. I investigate the exploitative character of this practice and

how it could present human rights abuses for the surrogate mother. Specifically, I focus my

analysis on how surrogacy contracts could violate the bodily autonomy of the surrogate and

potentially maintain gender inequality and reinforce gender stereotypes. After recognizing

certain concerning aspects of individual surrogacy arrangements, I question whether outlawing

surrogacy is the right response to this practice.

KEYWORDS

Human Dignity; Self-Determination; Contractual Freedom; Non-Discrimination; Exploitation

261

THE RIGHT TO DIGNITY OF THE SURROGATE MOTHER

TABLE OF CONTENTS

Introduction ............................................ 262

1. Human Dignity in the Jurisprudence of the European Court of Human Rights and the

EuropeanCourtofJustice.................................... 265

2. Surrogacy, Between Values of Freedom and Protection: The Right to Self-Determination

oftheSurrogateMother .................................... 270

2.1. Women’s Contractual Freedom as a Source for Empowerment . . . . . . . . . . 270

2.2. ProvidingSurrogacy on the Basisof Reproductive Rights . . . . . . . . . . . . . 273

2.3. Providing Surrogacy on the Basis of Non-Discrimination and Gender Justice . . 274

2.4. ProvidingSurrogacy Based on LaborRights . . . . . . . . . . . . . . . . . . . . . 276

3. Violation of the Right to dignity of the surrogate mother in commercial surrogacy . . . . 277

3.1.Exploitation...................................... 277

3.2. Reinforcement of Gender Inequalities . . . . . . . . . . . . . . . . . . . . . . . . 279

Conclusions............................................. 282

INTRODUCTION

International commercial surrogacy has shaped a new branch of tourism.1Methods of

baby-making have expanded rapidly through technological advances and globalization.

Women worldwide offer themselves to carry a child for another couple who might suffer

from infertility or prefer to use this service because of other reasons.2The 2030 Agenda

for Sustainable Development in Sustainable DevelopmentGoal 5 [hereinafter S.D.G. 5] aims

to achieve gender equality and empower all women and girls. This provision puts into

conflict the two sides of S.D.G. 5 namely, on the one side ending trafficking, sexual and

other forms of exploitation of women and girls and on the other side empowering them.

In the practice of surrogate motherhood, this tension is clearly visible as there exists a

conflict between values of protection and freedom.

The aim of this article is to confront the arguments in favour of and against the

participation of potential surrogate mothers in international commercial surrogacy.

This article concerns only the practice of commercial surrogacy whereby a woman is

compensated to carry the child. The focus of this analysis is the concept of human

dignity. Dignity constitutes a central element in International Human Rights Law and

has been integrated into various legal instruments.3

1See April L. Cherry, The Rise of the Reproductive Brothel in the Global Economy: Some Thoughts on Reproductive

Tourism, Autonomy,and Justice, 17 U

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. P

A

. J. L. & S

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HANGE

257 (2014).

2See Claire Fenton-Glynn, OutsourcingEthical Dilemmas: RegulatingInternational Surrogacy Arrangements, 24 M

ED

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L. R

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. 59 (2016).

3See Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 E

UR

. J. I

NT

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L

L. 655

(2008).

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