Surrogate motherhood in illness that does not cause infertility

Abstract

The threshold requirement for surrogate motherhood requires that a commissioning parent or parents are permanently unable to give birth to a child. The question has arisen of a commissioning mother who suffers from a permanent illness that does not cause infertility but that renders pregnancy a significant health risk to her and/or to her prospective child in utero. The threshold requirement inability to give birth to a child should not be interpreted narrowly as referring only to a commissioning parent’s inherent inability to give birth to a child, but should be interpreted broadly as referring only to a commissioning parent’s effective inability to give birth to a child – allowing
consideration of the medical sequelae of pregnancy for the commissioning mother and her prospective child. A broad interpretation of the threshold requirement is compatible with legislative intent, case law and our constitutional commitment to human rights.