Labour as labour : exploring an employment model of regulation for commercial surrogacy

Abstract

Commercial surrogacy continues to grow in popularity. Lack of legal provisions at the international and domestic levels, however, has given rise to myriad problems. This has increasingly caused states and academics to consider whether regulation may be the preferable approach. Yet despite the extensive sociological and anthropological literature that has conceptualised contract pregnancy as a form of work, the question of whether and how this might translate into a new legal framework remains underexplored. This thesis seeks to bridge this disciplinary gap by investigating the merit of treating surrogates as the employees of their intended parents, therein regulating contract pregnancy through labour law. To do so, it addresses numerous issues through five substantive Chapters: the controversies with marketizing reproductive labour, the current legal landscape, whether surrogacy could really be regulated as labour, what labour law might have to offer, and finally what the challenges might be with this approach to regulation. It draws on a range of secondary sources to answer these, but also integrates analysis of both Californian surrogacy contracts and interviews with industry actors conducted as part of this research. Overall, I argue that particularly for states which do not currently regulate surrogacy – whether because it is prohibited, ignored, or they ascribe to a Free Market approach – labour law has real potential as a pre-existing solution to help ensure that these arrangements operate as ethically as possible. Certainly, exploring this possibility would help to overcome the exceptionalisation of reproductive labour, which this thesis shows is detrimental not only to gestational carriers, but also the coherency of labour law itself.