Legal access to surrogate motherhood in illness that does not cause infertility

Abstract

The threshold requirement for surrogate motherhood entails that a commissioning parent or parents must be permanently unable to give birth to a child. The question of whether a commissioning mother who suffers from a permanent illness that does not cause infertility as such, but that renders pregnancy a significant health risk to such mother and/or to her prospective child in utero, has arisen in practice. In this article, I propose that the inability to give birth to a child as per the threshold requirement should not be interpreted narrowly as referring only to a commissioning parent’s inherent inability to give birth to a child, but should rather be interpreted broadly as referring only to a commissioning parent’s effective inability to give birth to a child – allowing consideration of the medical sequelae of pregnancy for the commissioning mother and her prospective child. I argue that such a broad interpretation of the threshold requirement is compatible with legislative intent and case law, and is demanded by our country’s constitutional commitment to human rights.