Hastings Journal on Gender and the Law


Isa Elfers


In the United States, organ sale and other forms of paid organ donation agreements are legally prohibited on the grounds that they pose the potential to exploit indigent people for the use of their bodies by the wealthy. However, commercial surrogacy agreements, in which a woman is paid to undergo pregnancy on behalf of another person, form the basis of a booming industry in the United States and abroad. This note posits that commercial surrogacy agreements introduce the same potential for exploitation of the poor as paid organ donation agreements, and that that potential is compounded by specific exploitation of surrogates’ reproductive labor along the lines of race, class, gender, and nationality. Therefore, this note argues that surrogacy agreements should be regulated under the same terms as organ donation and should become a purely altruistic form of legal agreement, rather than a salable service or good.