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“Valorized, but not Compensated”* (September 2025)
Reproductive Labor and Bodily Autonomy in the Criminalization of Surrogacy
*Note about the title: Title borrowed from Banerjee, S., & Kotiswaran, P. (2020). Divine labours, devalued work: the continuing saga of India’s surrogacy regulation. Indian Law Review, 5(1), 85–105. https://doi.org/10.1080/24730580.2020.1843317
Executive Summary
This essay examines the current and emerging debate about restrictions on surrogacy as part of a broader anti-gender and anti-democracy agenda. While governments claim that bans and restrictive laws “protect women from exploitation,” such policies are often based on harmful gender stereotypes, undermine bodily autonomy, reinforce patriarchal norms, and may criminalize those seeking assisted reproduction as well as those seeking economic opportunity. Drawing on examples from a number of countries, the essay critiques the binary of “altruistic” versus “commercial” surrogacy, showing how it obscures women’s economic realities and perpetuates exploitation by denying fair compensation and recognition of reproductive labor.
The analysis situates surrogacy within wider struggles for sexual and reproductive rights and justice, highlighting how anti-gender movements instrumentalize the rhetoric of “violence” and “trafficking” to justify regressive punitive measures. These approaches fail to address structural inequalities such as poverty, gender-based discrimination, infertility, and lack of healthcare access, which shape decision-making about surrogacy. Rather, they push surrogacy underground, heightening risks for surrogates, children, and intended parents.
The essay argues for a gender just, evidence- and rights-based framework that respects bodily autonomy, ensures economic and social rights, and responsibly regulates surrogacy in ways that promotes and protects human rights, rather than punishes those who are engaging in it. It calls on feminist, queer, trans, disability, migrant, and reproductive justice and other movements to engage more actively on the issue of surrogacy to prevent the takeover of the agenda by anti-gender and anti-democracy actors. Ultimately, surrogacy must be recognized as a core issue in the economic justice, gender justice and reproductive justice agendas, and the fight for surrogacy is a fight to ensure every person’s right to health, bodily autonomy, and social and economic protection are guaranteed.
Summary
Surrogacy is a contentious issue globally, the discussion of which is increasingly influenced by conservative anti-gender, anti-democracy movements. Recent examples of harsh restrictions on surrogacy include Italy’s punitive ban on overseas surrogacy, the U.S. executive order threatening birthright citizenship, and India’s restrictive Surrogacy Regulation Act of 2021. These measures reflect a broader agenda of curtailing bodily autonomy, restricting reproductive rights, eroding economic rights, and reinforcing patriarchal norms.
The essay critiques how surrogacy is often framed as a moral or ethical issue rather than a matter of human rights, health, economic justice and autonomy. Anti-gender actors exploit the issue to attack women’s choices, delegitimize same-sex couples, and stigmatize compensated surrogacy. This framing draws on alarmist rhetoric equating surrogacy with violence and trafficking, the likes of which is increasingly finding landfall in multilateral negotiations and discussions, evident in the recent UN Special Rapporteur for violence against women’s call for its universal eradication. Such approaches not only marginalize those seeking surrogacy services and those choosing to act as surrogates but also give governments cover for broader regressive policies, including hostile anti-immigration laws.
A central argument in the publication challenges the binary between “altruistic” and “commercial” surrogacy. While “altruistic” arrangements are valorized as morally superior, they could often involve implicit coercion, especially for women in patriarchal settings where family and social pressures undermine genuine consent. Conversely, compensated surrogacy is stigmatized as exploitative, even though it may provide critical economic opportunities and affirm autonomy and agency. Feminist scholars argue that this binary framework serves to erase the value of reproductive labor and perpetuates exploitation by denying fair compensation and recognition to those choosing to act as surrogates. Rather than criminalize commercial surrogacy, the state should ensure protections such as healthcare, childcare, education, and social security for every person involved in surrogacy agreements - including surrogates.
Bodily autonomy forms the essay’s second key focus. International frameworks like CEDAW, ICCPR, and the Maputo Protocol affirm the right to reproductive choice and personal autonomy. Yet, under the guise of “protection,” many laws infantilize women, treating them as passive victims in need of rescue rather than autonomous actors. This “protectionism” strips women of agency and reinforces dangerous stereotypes that they cannot make informed choices about their own bodies. A rights-based approach demands recognition of surrogates as decision-makers with the right to safe, regulated conditions—not punitive restrictions and policies based on a notion that they need to be “saved”.
Economic and social rights are equally vital, the essay argues, in the debate about surrogacy. Surrogacy often arises in contexts of economic inequality, where women seek economic opportunity through providing reproductive labor as a service. Criminalizing the practice exacerbates injustice, stripping these people of opportunities while ignoring systemic root causes such as poverty, racism, xenophobia, and gender inequality. Organizations like GIRE stress that bans do little to prevent exploitation but instead entrench stereotypes about women’s reproductive roles. Real protection requires addressing structural inequality and violence and ensuring socioeconomic rights for all parties involved.
The essay also documents the harms of criminalization. In Cambodia, Filipino surrogates were jailed under trafficking charges - this case study highlights how punitive measures disproportionately harm women. In Argentina, legal uncertainty left surrogates, parents, and children vulnerable, with courts denying recognition of parental rights in same-sex surrogacy cases. Criminalization pushes surrogacy underground, increases risks of exploitation for those acting as surrogates, and could undermine the rights of children and families.
The conclusion emphasizes that feminist and human rights movements must resist anti-gender actors’ attempts to co-opt the violence and protection agendas. Surrogacy should be situated within broader struggles for reproductive justice, economic equality, and gender justice. Properly regulated compensated surrogacy can safeguard rights, affirm bodily autonomy, ensure economic rights, and expand family formation opportunities for diverse persons. Criminalization, in contrast, deepens injustice and erodes autonomy.
Ultimately, advancing a feminist, rights-based approach requires addressing structural inequalities, ensuring economic and social protections, and recognizing reproductive autonomy as central to gender justice. Bodily autonomy is non-negotiable: without it, gender justice cannot be achieved. Surrogacy, when regulated in ways that affirm rights and agency, should be defended as part of the broader fight for reproductive justice and inclusive futures.
Download the full article (English) here!