La maternité de substitution: le coût caché de l'altruisme

In Germany, the debate over surrogacy has intensified following remarks made by Frauke Rostalski, professor of criminal law and philosophy at the University of Cologne and member of the German Ethics Council since 2020. In an interview with Kölner Stadt-Anzeiger, she called for the legalization of surrogacy in Germany, arguing that such a legislative change would align with the values of most citizens. She specifically advocated for “altruistic surrogacy,” which would allow women to carry and give birth to a child for another person without financial gain. This model, she argued, should contrast sharply with the commercialized form prevalent in the United States, where surrogacy services have become a lucrative industry. Rostalski’s argument hinges on the idea that the high costs associated with surrogacy in the U.S., often reaching into the tens of thousands of dollars, are a direct consequence of the legal prohibition of the practice there. She claims that this artificial scarcity creates a market where profit becomes the primary motivator. The logic mirrors arguments used in debates over drug prohibition, where critics argue that bans can inadvertently fuel black markets. According to Rostalski, the strict legal stance in Germany could prevent the emergence of a similar system, ensuring that surrogacy remains accessible primarily to those who can afford it, though she acknowledges that this may still limit access to wealthier individuals. The issue of how costs are defined as “astronomical” remains unclear. While Rostalski criticizes the exorbitant fees charged in the U.S., she does not provide specific thresholds for what constitutes excessive payment. In California, for example, standard contracts typically range around $150,000, with surrogates receiving approximately $60,000 as compensation. This figure reflects both the extensive involvement of the surrogate and the broad contractual freedom allowed under American law. In contrast, in countries where altruistic surrogacy is permitted, such as the UK, average costs fall between £20,000 and £30,000, though they can reach up to £80,000 in certain cases. Jens Spahn, former minister of health and current member of the Bundestag, has acknowledged that even if surrogacy were legalized in Germany, it would likely remain a privilege of the wealthy. He did not dispute the notion that the service he personally utilized in the U.S. would continue to be inaccessible to many. His comments suggest that while legalizing surrogacy might reduce some barriers, economic disparities would persist. This perspective underscores the broader challenge of balancing ethical considerations with practical realities. The discussion has been further complicated by the findings of the parliamentary commission on reproductive autonomy and reproductive medicine, which cited data from the UK. These reports indicate that even in jurisdictions where altruistic surrogacy is legally recognized, costs vary significantly and can still be substantial. The commission’s work highlights the complexity of regulating surrogacy in a way that ensures accessibility without compromising ethical standards. Rostalski’s position, however, has drawn criticism for its portrayal of the U.S. system as inherently exploitative. Critics argue that her claim, that the German ban prevents surrogacy from becoming a privilege of the rich, is misleading. They point to evidence showing that even in countries with legal frameworks supporting altruistic surrogacy, financial factors can influence who gains access to the service. The debate continues to evolve, with calls for more nuanced policies that address both ethical concerns and socioeconomic inequalities.