The desire to raise a child who shares your genetic makeup is one of the oldest and most deeply felt human longings. For many people, namely gay men, those with clinical infertility, and those for whom pregnancy is medically dangerous, gestational surrogacy makes that possible. In gestational surrogacy, a woman carries a pregnancy created through in vitro fertilization (IVF) using genetic material that is not her own; she has no genetic link to the child. The intended parents are the biological parents. The surrogate is, in the most precise sense, a carrier.

  That clinical description, however, does not settle the ethical question. As the practice has expanded into a global industry, it has forced a collision between two legitimate moral claims: the reproductive autonomy of intended parents and surrogates on one side, and the risk of exploiting economically vulnerable women on the other. Cutting across both is a question rarely asked loudly enough: What about the child? I will begin by arguing that gestational surrogacy is morally defensible, but that a just framework must place it at the end of a hierarchy of alternatives rather than treating it as a first resort. I will then engage directly with Stephen Wilkinson's (2016) defense of commercial surrogacy, which I find largely persuasive, before identifying a critical gap in his account. Ultimately, I propose that gestational surrogacy is ethically permissible only when other options have been genuinely considered, when commercial arrangements are regulated rather than banned, and when the surrogate's autonomy is treated as continuous, not as a single signature on a contract.

The strongest argument for gestational surrogacy is the argument from reproductive need. For gay male couples and those for whom pregnancy is medically impossible, surrogacy is not a preference; it is the only path to biological parenthood. This distinction matters. The ethical question is not whether surrogacy compares favorably to conventional pregnancy; it is whether surrogacy is justified as a real alternative to permanent childlessness for people who have no other option. I believe it is. Kimberly Mutcherson (2020) is right that American law has historically been weaponized to deny LGBTQ+ people the right to build families, and the legislative shift represented by New York's Child-Parent Security Act is a genuine moral advance. However, the autonomy argument alone does not settle things. Autonomy can be formally present and substantively compromised simultaneously, a point I will return to when discussing consent under economic pressure.

Before arriving at commercial surrogacy, however, I want to argue for something the existing bioethical literature largely ignores: a hierarchy of alternatives that should be genuinely explored first. 

The first alternative is adoption. Millions of children worldwide are without permanent families. If the driving motivation is to raise a child and build a family, rather than specifically to have a child who shares your genetics, adoption deserves serious consideration before any reproductive technology is pursued. I am not arguing that the desire for genetic connection is an illegitimate interest, but the harms outweigh the interest. But a just ethical framework should require that adoption be genuinely considered, not dismissed before the conversation about surrogacy begins.

The second alternative is intrafamilial or intrafriendship surrogacy, asking a willing family member or close friend to carry the pregnancy without commercial compensation. This model removes the specific harm of economically-driven consent and ensures the carrier is genuinely known. It carries its own complications: the social pressure on a sister or close friend to say yes, even if she would privately prefer to say no, raises real concerns about autonomy. Jenny Gunnarsson Payne (2018) notes that the Swedish governmental investigator flagged this risk precisely, warning that “it can be difficult to say no to a next of kin.” I take these complications seriously. But I maintain that this option should be explored before turning to the commercial market. Only when both adoption and intrafamilial surrogacy have been genuinely considered,  and genuinely cannot work, is commercial surrogacy the right next step. This hierarchy does not prohibit commercial surrogacy. It reframes it as a last resort rather than a default, which I believe is the ethically honest position.

I will now turn to Stephen Wilkinson's (2016) account, which provides the strongest philosophical defense of commercial surrogacy currently available and which I largely endorse. Wilkinson's central argument runs as follows. Commercial surrogacy may, in some cases, be exploitative, particularly in international arrangements where wealthy intended parents hire surrogates from poor countries. However, exploitation does not, by itself, justify prohibition. His key distinction is between harmful exploitation, which makes the exploited party worse off, and mutually beneficial exploitation, in which the arrangement is unfair but still improves the welfare of the exploited party. When a woman in a low-income setting accepts payment for gestational labor, she would not accept under better circumstances; the arrangement becomes exploitative, but it also makes her better off than she would be without it. To ban surrogacy in the name of protecting her, Wilkinson argues, is to “compound the wrong” of poverty by removing her best available option.

Wilkinson also advances what I’ll refer to as the consistency argument: it is morally inconsistent to single out surrogacy for prohibition while permitting other forms of hazardous or unpleasant labor to continue. We allow people to work in dangerous conditions, such as mining, commercial fishing, and factory work, all for pay, all under economic pressure. Further, we accept payment for research subjects, blood donors, and plasma donors. If we accept that people may legitimately take on physical risk for money in those contexts, Wilkinson asks, why do we treat gestational labor differently? He does not claim surrogacy is unproblematic; he claims that banning it while permitting comparably risky work elsewhere is an indefensible double standard.

I find Wilkinson's consistency argument convincing, and I want to say clearly why. If we genuinely believe poor women should be protected from the labor market, we should be arguing for a universal basic income, not a surrogacy ban. Prohibition does not make a poor woman less poor. It removes one option, often her most lucrative one, while leaving the conditions that drove her to consider it completely intact. That is not protection; it is condescension dressed up as ethics. On this, I side with Wilkinson.

  However, Wilkinson's framework contains a significant gap. He argues that we should improve pay and conditions in commercial surrogacy rather than prohibit it, and I agree. But he does not specify what adequate pay and conditions actually look like, nor does he engage seriously with the question of how to ensure that consent is substantive rather than merely formal. He establishes convincingly that banning surrogacy is wrong. He does not establish what a genuinely just arrangement requires. Wilkinson does not explicitly claim that a signed contract is sufficient for ethical legitimacy, but his argument appears to assume it, because his entire defense of surrogacy rests on the surrogate's choice to accept a welfare-enhancing offer. Gunnarsson Payne (2018) identifies this problem precisely: reproductive autonomy should not be reduced to a static choice at the moment of contract formation but should be understood as a continuous right of self-determination that persists throughout the nine months of gestation. A woman may freely agree to begin a surrogacy arrangement and still find her autonomy compromised by contract terms that restrict her behavior during pregnancy or by the emotional realities that develop as it progresses. Wilkinson is strong on why we should not ban surrogacy; he is weaker on what we owe the surrogate once the contract is signed.

This brings me to the sharpest difficulty in the debate: consent under economic pressure. Consider a woman below the poverty line offered $40,000 to carry a pregnancy. She has dependent children, unpaid rent, and no comparable alternatives. She says yes. Is her consent valid? My answer is yes, but with important caveats. I believe that a woman in poverty is an autonomous agent capable of making decisions about her own body. The fact that her circumstances are desperate does not strip her of moral agency. If we say poor women cannot consent to surrogacy because poverty compromises their freedom, we apply a standard we do not apply elsewhere,  and we deny poor women economic opportunities in the name of protecting them.

 At the same time, the greater a woman's poverty, the more attractive the surrogacy offer becomes, and the harder it is to distinguish genuine willingness from sheer economic desperation. This is not a reason to ban surrogacy. It is a reason to insist on fair compensation, independent legal counsel, and robust protections for the surrogate's ongoing autonomy. The case of Tal and Amir, documented by Mutcherson (2020), illustrates what happens in the absence of these protections. An Israeli same-sex couple arranged for Indian surrogates to carry their children, births taking place in Nepal to circumvent India's ban on gay surrogacy. They believed they were paying $12,000 per surrogate, enough, as one partner put it, to 'change their lives.' After a devastating earthquake struck Nepal, the Israeli government airlifted the babies and their fathers to safety. No effort was made to locate the surrogates. The couple later discovered that the women may have received as little as $1,000 after intermediaries took their cut. This is not a failure of surrogacy as a practice. It is a failure of an unregulated arrangement operating in a legal vacuum, precisely the outcome that Wilkinson's framework, for all its strength, does not adequately guard against.

There is one moral subject who consistently disappears from both sides of the surrogacy debate: the child. Both defenders and critics tend to frame the ethical conflict as one between intended parents and surrogates. The child is treated as the desired outcome, rather than an independent stakeholder. Sara Lamm (2020), a donor-conceived adult, made this point directly in her letter to Governor Cuomo opposing the initial version of New York's surrogacy legislation. Lamm noted that the very drive motivating intended parents, what she calls “a felt sense of knowing and being known”, is the same drive that will one day move the resulting child to ask about their origins. She argues that a legal framework that erases the surrogate from the child's official record in the name of a clean transaction treats the child's identity as an afterthought. This concern is empirically supported: Jadva et al. (2023) found that positive outcomes for surrogacy-born young adults were strongly associated with early disclosure of their origins, typically by age four. Concealment, by contrast, correlated with feelings of anger and confusion when the truth emerged later. Transparency about origins is an evidence-based condition for the child's long-term well-being.

New York's Child-Parent Security Act (CPSA), effective February 15, 2021, is the most serious American legislative attempt to address these tensions. It legalized gestational surrogacy, established a Surrogates' Bill of Rights guaranteeing independent legal counsel, health insurance, and medical decision-making authority throughout the pregnancy, and created a first-of-its-kind licensing system for surrogacy organizations (New York State Department of Health, 2021). These are genuine achievements. Independent legal counsel addresses unequal bargaining power. Preserved medical sovereignty, including the right to terminate, reflects the kind of ongoing autonomy Gunnarsson Payne (2018) argues is essential. However, the CPSA, as enacted, did not adequately address the identity rights of resulting children, the concern Lamm raised directly in her letter. Regulation can improve the conditions under which surrogacy occurs without resolving what the child is owed. The CPSA is an important floor, but a just framework must also treat the child's right to know their full origins as non-negotiable, not a matter of privacy for contracting adults to decide.

  Let me state my final position plainly. Gestational surrogacy allows families to blossom who would otherwise not have a possible one and I believe the desire for genetic connection is legitimate and deserves respect. A just framework, however, must insist that commercial surrogacy be reached only after adoption and intrafamilial surrogacy have been genuinely explored. I side with Wilkinson (2016) that banning commercial surrogacy compounds the wrong of poverty and produces worse outcomes for the women it claims to protect; regulation is the right response, not prohibition. Until regulation is fair, we must stop gestational surrogacy. But regulation must include, at a minimum, fair and transparent compensation, genuine independent legal counsel, ongoing protection of the surrogate's autonomy throughout pregnancy, and radical transparency about the child's origins.

Ultimately, the ethical legitimacy of any surrogacy arrangement rests on three questions: was the surrogate's consent substantive rather than merely formal? Were reasonable alternatives genuinely considered before entering the commercial market? Will the resulting child have access to the full story of their birth? If the answer to all three is yes, gestational surrogacy is not only permissible but morally necessary, a remarkable instance of one person's willingness to give the gift of life to another. If the answer to any one of them is no, the ethical and regulatory frameworks must be amended before gestational surrogacy is allowed.

References

Calder, V. B. (2023). Defending gestational surrogacy: Addressing misconceptions and

   criticisms (Briefing Paper No. 171). Cato Institute.

 Gunnarsson Payne, J. (2018). Autonomy in altruistic surrogacy, conflicting kinship grammars

   and intentional multilineal kinship. Reproductive BioMedicine and Society Online, 7, 

66–75.

 Jadva, V., Jones, C., Hall, P., Imrie, S., & Golombok, S. (2023). 'I know it's not normal but it's

   normal to me, and that's all that matters': Experiences of young adults conceived through

   egg donation, sperm donation, and surrogacy. Human Reproduction, 38(5), 908–916.

 Lamm, S. (2020, March 4). Letter to Governor Andrew M. Cuomo regarding the New York

   surrogacy bill. Reckon So Productions.

 Mutcherson, K. (2020). Building queer families and the ethics of gestational surrogacy.

   University of Richmond Law Review, 54(3), 901–926.

 New York State Department of Health. (2021). The New York State Child-Parent Security Act:

   Gestational surrogacy. https://health.ny.gov/community/pregnancy/surrogacy/

 Wilkinson, S. (2016). Exploitation in international paid surrogacy arrangements. Journal of

   Applied Philosophy, 33(2), 125–145.