Whose Rights Count: A Comparative Assessment of How Prohibitionist, Altruistic and Commercial Surrogacy Regimes Protect the Surrogate Mother

Abstract

Comparative writing on surrogacy usually sorts legal systems along a single axis, permission against prohibition, and usually evaluates them from the standpoint of intending parents or the child. This paper asks a different question: how well does each model protect the surrogate mother herself? It develops a framework of five indicators (integrity of consent, bodily autonomy and exit, economic security, health and aftercare, and remedies and voice) and applies it to prohibitionist and abolitionist regimes (France, Germany and Italy), altruistic-regulatory regimes (the United Kingdom and South Africa), commercial-regulatory regimes (California and New York) and India. Its central finding is that the rights position of the surrogate is explained less by whether payment is permitted than by the procedural architecture that surrounds the arrangement: independent counsel, counselling, pre-authorisation, insurance and enforceable decision-making rights. Prohibition removes the arrangement from legal protection without removing the practice, and the 2025 call by the UN Special Rapporteur for global abolition rests on a premise that comparative evidence does not settle. India’s Surrogacy (Regulation) Act, 2021 pairs the strictest payment rule in the sample with the thinnest set of surrogate-specific entitlements. The paper concludes with transferable lessons and notes the limits of transplanting foreign solutions into a context of acute inequality and limited legal aid.