The conquest of ubiquity, or: why we should not regulate commercial surrogacy (and need not regulate altruistic surrogacy either)

The transnational market of gestational surrogacy puts a double strain on western European countries that refuse to acknowledge surrogacy agreements, as the ban on surrogacy does not prevent recognition of the effects of transactions carried out abroad, and the emphasis put by the ECtHR in Mennesson et Labassée on individual identity is at odds with the model of social justice developed in western Europe. Having analysed market regulation and top-down hierarchical allocation systems as allegedly pragmatic ways out of this conundrum, this paper argues that neither would offer a credible alternative to the ban of surrogacy agreements. Some policy proposals in the perspective of risk reduction and anti-discrimination are briefly considered.