Surrogacy Agreements and Interdisciplinary Pathways to Minimum Justice: A Comparative Study of Finland, Colombia and Greece

No matter where and under what jurisdiction surrogacy takes place, it involves difficult questions of consenting and contracting in ethically delicate matters.
Jurisdictions have adopted widely varying approaches to surrogacy, ranging from a free-market model to outright prohibition. The best interest of the individual child has nonetheless compelled receiving states to adopt a somewhat tolerant stance towards surrogacy happening abroad, even when such arrangements conflict with domestic legislation. Due to problems of recognition of parenthood of children born at the global ART market there is increasing European and international pressure to formulate guidelines by which to regulate the formation of parenthood in cross-border cases. The JustISA project adopts a comparative research design and investigates international surrogacy arrangements (ISAs) through the lens of the normative capability approach and through an interdisciplinary approach between socio-legal studies and social sciences. JustISA focuses particularly on Finland, Greece, and Colombia—three countries that exemplify distinct regulatory frameworks. Previous research has often failed effectively explaining the gray areas between applications of surrogacy with limited risks and challenges, and exploitative surrogacy arrangements. The study of agreements will provide new knowledge in relation to practices of consenting, contracting, and managing legal risks in surrogacy, as contracts may also limit the reproductive autonomy of surrogates.

The socio-legal JustISA project examines international surrogacy arrangements (ISAs) through the normative capability approach, addressing justice-related issues such as the child’s best interests, the desire for parenthood, legislative circumvention, and the impact of questionable practices on individuals (children, surrogates, intended parents) and legal systems. Research data include online sources and agreements from Colombia and Greece. ISAs are analyzed in relation to Finland’s surrogacy ban and principles of parenthood formation. A key question is whether the circumstances of a child’s birth should influence recognition of parent–child relationships in Finland—and whether prohibiting national arrangements is legally sustainable if international ones must be recognized in the name of the child’s best interests.