In the Best Interest of the Child? On the justification for state restrictions on surrogacy

Abstract

Recently, changes to the Dutch Family Law Code for the regulation of surrogacy, have been proposed by an advisory committee. The proposal allegedly focussed on protecting the best interest of the child, in the sense that harmful consequences to the interest of children ought to be prevented. This article questions the consequentialist approach and identifies several deontological arguments in the ethical justification. These deontological arguments protect the rights of children to know the identity of their genetic and gestational parents and be raised by at least one genetic parent. Furthermore, the dignity of the child prohibits commercial surrogacy. The inclusions of deontological arguments raises questions about the extent and how the State may impose such values. Furthermore, the inclusion of deontological arguments requires a coherent application, which is wanting in the proposal. A possible explanation for this inconsistency are the conflicting underlying models of parental responsibility. A child centred geneticism model, where parental rights follow from the parental obligations, is combined with a pluralistic model. In the latter model, parental rights, not parental obligations are fundamental. Further research is necessary to come a dual interest view, that will allow for a coherent application of the deontological parental obligations in the best interest of the child.