Theoretical Perspectives on Surrogacy: Towards a Jurisprudential Pluralist Approach

Abstract

Surrogacy has provoked intense scholarly debate as it intersects with moral, legal, and socio-political dimensions of human reproduction. This chapter interrogates surrogacy through the lenses of Natural Law Theory, Positivist Law Theory, Feminist Theory, and Autonomy Theory, with the primary aim of providing a comprehensive theoretical understanding of its legitimacy and regulation. It further seeks to evaluate the adequacy of these theoretical perspectives in shaping a balanced and humane legal framework on surrogacy. The research questions are: How does these theories of law justify or resist the recognition of Surrogacy? To what extent do these theories address the tension between morality, legality, and individual rights in surrogacy arrangements? Employing the doctrinal methodology, this paper finds that Natural Law Theory, which is grounded on morality and the sanctity of procreation, tends to resist surrogacy as contrary to natural reproductive order, while Positivist Theory legitimatizes it if sanctioned by enacted laws regardless of moral reservations. Feminist Theory divided into two parts one in support of surrogacy on the ground of women helping one another while the other group exposes the gendered exploitation and commodification of women’s bodies inherent in commercial surrogacy, whereas Autonomy Theory recommends that a reconciliatory framework is necessary, one which recognises the autonomy of individuals while safeguarding women and children. The chapter concludes that no single theory provides a sufficient foundation for regulating surrogacy; rather, a pluralist theoretical approach is essential to balance moral concerns, legal certainty, and human rights protection.