Breaking out of the Regulatory Delusion. The Ban to Surrogacy and the Foundations of European Constitutionalism

Abstract The transnational market of reproductive services puts a strain on western European States that refuse to acknowledge surrogacy contracts on public policy grounds. The cases decided so far rise three questions. First, under what circumstances foreign surrogacy judgements should be recognised? Second, what would be the constitutional repercussions of the recognition of these judgements? Third, how would it be like a legislation at once effective and respectful of fundamental rights of all parties involved? This Article analyses these questions and how they relate to each other. Based on a transaction-cost economic framework an argument is made that neither top-down, nor market-based regulatory solutions overcome the constitutional arguments that uphold the ban to surrogacy. An alternative approach to legal reform is considered, grounded on IPL and substantive domestic measures.