Surrogacy: between freedom-restricting contracts and eugenic abortions

However, a liberal approach, based on consent and couples’ freedom of choice regarding reproduction, considers that it is possible, under certain conditions, to make this practice acceptable, or even ethical. This approach overlooks two realities: the reality of pregnancy, an experience that is above all relational and physical, involving constant adaptation and interaction between the mother and the child she is carrying. And secondly, the reality of a contract which, regardless of the type of surrogacy, by its very nature acknowledges the provision of a woman’s body and reproductive functions, which runs counter to the principle that the human body cannot be the subject of a contract. 

These contracts contravene the principle of the inalienability of the human body. The clauses accompanying them emphasise, if any further proof were needed, that there is no freedom for the surrogate mother once she enters into a surrogacy arrangement, unless one considers that her body is no longer her own.  

When freedom-restricting clauses govern the surrogate mother’s life  

Le Figaro has examined various surrogacy contracts drawn up by agencies in countries that authorise openly commercial surrogacy, such as Russia, India and certain US states, and in countries such as the United Kingdom, Canada and Greece, where only so-called altruistic surrogacy is permitted. An examination of these contracts reveals freedom-restricting clauses that govern various aspects of the surrogate mother’s life throughout the entire pregnancy.  

These clauses stipulate, for example, that the surrogate mother may not have sexual relations from conception until she obtains the obstetrician’s consent. In India, Ukraine and the United States, some agencies even prohibit all sexual relations during pregnancy.  

Certain clauses in a Mexican contract, meanwhile, impose travel restrictions on surrogate mothers, who must remain where they live and may not change their place of residence without written permission. A Ukrainian contract also reviewed by Le Figaro states that, from the seventh month of pregnancy, the surrogate mother must live in a room chosen by the agency. This same contract also prohibits certain activities such as swimming in the sea or sunbathing, and travel by plane or boat. Some contracts also limit tea or coffee consumption to one cup per day.  

Surrogacy contracts: an implicit recognition of the unique nature of pregnancy?  

If these clauses are so detailed, it is because the subject of the contract is not the manufacture of a product or the provision of a simple service, but rather the conception and growth of a human being that the commissioning parents have purchased. The contracts and their clauses clearly highlight the significance of pregnancy and the potential bond between the mother and her child. Moreover, once pregnancy has begun, the surrogate mother can no longer contest the contract, claim parental rights or decide to keep the child. Changing her mind means she must repay the full amount paid, plus compensation for emotional distress. These sums can sometimes amount to double what she received and are therefore impossible to repay, as the investigation by Le Figaro further highlights.    

The contracts also affect the child’s life during pregnancy. Couples may, for example, demand embryo reduction, that is, the removal of one or more embryos in the event of a twin or multiple pregnancy, as is permitted in California. 

Finally, the surrogate mother’s commitment to hand over the child to the commissioning couple after birth is legally and ethically problematic, as it amounts to surrendering a human being—the child. The surrogacy contract therefore involves an act of disposal not only over the human body—that of the surrogate mother—but also over the child itself. 

Forced abortion of disabled foetuses: towards liberal eugenics?  

The practice of surrogacy illustrates the limits of liberal logic. Whilst the ‘right to control one’s own body’ is often invoked to justify surrogacy and, in other contexts, abortion, this argument backfires on the surrogate mother. Some contracts do indeed include clauses relating to abortion whereby the intended parents can compel the surrogate mother to have an abortion if it transpires that the foetus has a disability or suffers from a condition “incompatible with an acceptable quality of life”, as noted by Le Figaro. The surrogate mother must also reimburse all costs incurred by the child’s intended parents if she refuses or, conversely, decides on her own to terminate the pregnancy.  

In Belgium, the Advisory Committee on Bioethics issued an opinion in 2023 in which it considered that surrogacy may be ethically acceptable. Members remain divided on whether the surrogate mother should be able to withdraw and keep the child, but agree that she must retain the option to have an abortion. The Committee chose not to address the possibility of the child having a disability, which means that the matter is left to the terms of the contract, which may force the surrogate mother to have an abortion if the child does not meet the commissioning parents’ expectations.  

Following the same logic, the argument of the child’s presumed quality of life is often invoked to justify a form of liberal eugenics that permits the selection of children deemed worthy of life, thereby compelling a woman to have an abortion where necessary.  

Whilst abortion is commonly justified in the name of a woman’s right to control her own body, clauses that compel surrogate mothers to have an abortion highlight the limitations of this argument and the reality of pregnancy, which brings together two truly distinct individuals.  

Source:Le Figaro, 13 March 2026