Regulating Surrogacy: Chances and Pitfalls

Surrogacy raises admittedly a series of concerns, but it is also a reality and, as long as there are persons who cannot have children in a different way, this will not change. Its prohibition at a global level is both unfeasible and unenforceable, while its non-regulation reads to legal uncertainty. Pragmatic considerations call for the regulation of surrogacy; not because pragmatism overrides ethics, but because a good regulation, one that balances the interests of all parties involved, not only on paper but also in practice, can successfully address most of the concerns about surrogacy. In 2002 Greece was the first European country to introduce a comprehensive regulatory scheme for surrogacy, followed by Cyprus in 2015 and Portugal in 2016.Drawing mainly on these jurisdictions, the aim of this paper is to shed light into the alternative patterns of regulation of surrogacy and point out the chances and pitfalls of such an endeavour. I argue that the main points around which a surrogacy regulation should revolve are: allow for gestational surrogacy only; set eligibility criteria for both the intended parents and the surrogate; provide for monitoring mechanisms that oversee the whole process; establish legal parenthood of the intended parents already at birth. To ensure the success of the regulation, the lawmaker should stay clear of too restrictive or practicably unenforceable rules