At the center of every surrogacy agreement is the contract, the point where economic interests and personal desires meet. Here a profound discomfort emerges: parenthood, which in other cultures and contexts is a natural and emotional bond, must pass through money, markets, laboratories, catalogs, and contracts, with service-purchase clauses in which the child itself becomes one of the services offered. It is precisely in this context that the power imbalance characterizing the surrogacy industry is made manifest, black on white.
Contractual Freedom and Human Rights
The freedom to enter into contracts is a fundamental principle of democratic societies, but it cannot be absolute.
In modern law, it is subject to respect for the dignity, physical integrity, and freedom of the people involved. The State, as a guarantor of the common good, must set ethical and legal limits to prevent bargaining from becoming a tool of domination or exploitation.
These limits do not deny freedom: they make it possible. Just as gravity allows dance, the boundaries set to protect the individual enable contractual relationships to develop in a fair and balanced way.
The prohibition on selling organs or body parts—even with consent—demonstrates that not everything can be subject to economic exchange. Similarly, the principle that leads to banning the purchase of sexual services reiterates that the human body cannot be reduced to a commodity, even when there is agreement between the parties.
Inequalities in Surrogacy Contracts
Surrogacy highlights deep inequalities:
- a power imbalance between social classes and genders;
- health risks concentrated on the surrogate mother;
- the denial of certain fundamental rights of the unborn child.
The latter is deprived of the right to have certain origins and to know their biological history, since the so-called “donor” often remains anonymous.
The child’s right not to be made an orphan at birth by contractual choice is also violated, as is the right to maintain contact with the mother who carried them for nine months, including breastfeeding, recognized as an essential moment of emotional bonding and psychophysical development.
The Limits of the Contract and Social Justice
Just as one cannot enter into a contract to commit a crime, the limits on contractual freedom in surrogacy serve to preserve justice and human dignity.
The experiences of surrogate mothers show that the logic of the market cannot regulate life or the body without falling into exploitation.
Regulation, Altruism, and the Global Dimension
Some call for stricter regulation or the promotion of altruistic surrogacy. However, truly altruistic cases are rare, and even in these instances, the woman’s vulnerability and the child’s rights remain unresolved.
On an international level, cross-border surrogacy amplifies inequalities: women from poor countries are recruited by wealthy Western couples.
Exploiting their economic need perpetuates post-colonial dynamics of exploitation.
The real solution is not to commodify the body more efficiently but to create social conditions that make its sale impossible.
Conclusion: Toward Universal Protection of Human Dignity
Many of the clauses in surrogacy contracts are oppressive, especially toward the unborn child, and should be challenged and declared null.
Among these, donor anonymization should be prohibited, and obligations for recognition and maintenance introduced, as well as the right to maternal contact and emotional continuity after birth.
We hope that, at an international level, surrogacy contracts will progressively become increasingly restrictive, eventually leading to a worldwide ban and an absolute prohibition on heterologous fertilization and surrogacy.
Only in this way will it be possible to consistently and universally affirm the protection of human bodily dignity and children’s rights as non-negotiable principles.
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