Over the past few decades, the concept of consent has become one of the cornerstones of contemporary feminist activism. It has established itself as the decisive criterion used to distinguish between legitimate sexual relations, based on free, informed and enthusiastic agreement, and illegitimate and criminal relations, imposed through coercion, manipulation or abuse of vulnerability. On this basis, a simple and seemingly indisputable moral norm gradually spread: ‘if it’s consensual, it’s okay’.
This approach, first developed to address sexual violence, now extends far beyond the private sphere and encompasses all individual choices, especially those made by women. Sex work, pornography, reproductive practices, body modifications: references to consent now tend to neutralise any moral or political criticism. Calling into question a woman’s choice now risks being seen as paternalistic; criticising a practice when it is claimed in the name of individual autonomy appears to be an infringement of freedom. This shift responds to a historic and legitimate demand: ending centuries of control, judgement and the deprivation of women’s ability and right to make decisions for themselves.
Yet it would be illusory to think of this recent centrality of consent independently of its political and economic context. Since the early 1980s, a new form of capitalism has emerged: neoliberalism. As the market has become the norm for political adjustment, rather than the other way around, individuals are required not only to optimize themselves and become true ‘entrepreneurs of themselves,’ as Foucault (2004)1 argues, but also to take responsibility for their capital, not only economic, but also physical and psychological. Freedom and autonomy are thus established as the governing principles of society. As a result, political subjectivities are reconfigured: collective struggle gives way to individual emancipation, and structural equality to a greater number of private choices. In this context, consent became a central mechanism of legitimisation, allowing previously partially protected spheres such as the body, sexuality and reproduction to be integrated into the market. Far from being neutral, this market operates within the patriarchal system.
These trends are particularly evident in the simultaneous emergence of pro-sex feminism and the neoliberal order. By refusing to politicise intimacy and reducing sexual and reproductive relations to interactions between individuals who are legally equal, this movement tends to neutralise patterns of domination that have historically shaped sexuality and motherhood. Abolitionist criticism thus emphasises that consent, when thought of abstractly, risks becoming not a tool for emancipation, but an instrument for naturalising power relations.
The controversy surrounding surrogacy arises in this context. Nowadays, surrogacy is presented as one of the ultimate expressions in this ideology of choice: where consenting adults enter into a contract of their own free will in order to fulfil their desire to become parents. As a result, any criticism would be dismissed as an attack on individual freedom. However, this apparent obviousness deserves to be questioned in depth. Surrogacy entails issues of singular gravity: the prolonged use of the female body, the contracted production of a child, the commodification of reproduction, and massive economic and geopolitical inequalities.
Two questions therefore arise. On the one hand, is the consent invoked in surrogacy legally conceivable and consistent with the fundamental principles of personal rights, the unavailability of the human body and the reversibility of will? On the other hand, what is the political significance of this mobilisation of consent: is it not one of the core mechanisms by which the neoliberal and patriarchal order creates a moral acceptance of new forms of appropriation of women’s bodies?
The impossibility of a legally effective consent
Before even examining the political, ethical and feminist issues raised by surrogacy, the legal soundness of the central argument that claims to legitimise it must be questioned: that of contractual consent. While consent is invoked as the decisive basis for the legality of surrogacy, there is still a need for it to be legally conceivable, consistent and effective. However, far from being self-evident, this consent runs into major contradictions with regard to the most fundamental principles of law.
From legal subject matter to contractual object: the unlawful nature of the contractual object in surrogacy
A review of private law immediately highlights a crucial difficulty: surrogacy challenges one of the fundamental distinctions of the contemporary legal system, which is the radical separation of persons from objects.
The law establishes an original division within the legal world between two irreducible categories: persons and objects. This summa divisio constitutes the highest and most fundamental distinction in private law2. Persons have legal personality, i.e. the capacity to hold rights and be subject to obligations; they are the very subjects of law, those for whom the legal system is established. Objects, on the other hand, are the objects of law, capable of appropriation, exchange and use.
This distinction underpins all guarantees relating to human dignity. In France, the law reaffirms this principle in Article 16 of the Civil Code: ‘The law ensures the primacy of the individual, prohibits any attack on human dignity and guarantees respect for human beings from the beginning of their lives.’ Furthermore, Article 16-1 states that ‘everyone has the right to respect for their body. The human body is inviolable. The human body, its elements and its products cannot be subject to property rights.’ There can be no property rights over a person; neither can anyone dispose of a human being.
Yet surrogacy directly jeopardises this fundamental structure. Enmeshed in agreements — and it is important to emphasise the commercial dimension of these practices — surrogacy rests on a contractual logic which, ‘based on the consent of both parties, legitimises the right to use the other person and their body as one would use an object’3. Nevertheless, neither the woman who is committed to nine months of pregnancy nor the child who is destined to be handed over to the commissioning parents should be treated as contractual goods, as this would violate the most basic principles of human rights.
Thus, the very legality of the subject matter of the surrogacy contract is highly questionable. It is significant that, in an attempt to bypass this impasse, a number of lawyers have devised a legal fiction whereby the contract does not concern the handing over of a child, but rather a simple ‘gestation service’.
Such a construction hardly stands up to scrutiny: if the child is not handed over, there is no interest in taking action and no genuine desire to enter into a contract. It is clear that the child is the ultimate and decisive purpose of the agreement.
By establishing a right to use a woman’s body and a right to hand over a child, surrogacy is therefore incompatible with the principles of the unavailability of the human body, the unavailability of a person’s status and, more broadly, with the demand for dignity on which the contemporary legal system is based.
The failure of the principle of continuity and reversibility
Beyond the actual subject matter of the contract, another major limitation of consent in surrogacy lies in its duration and continuity.
Consent, as it is conceived in the context of sexual relations, is not a fixed act: it must be reversible, renewable and maintained throughout the duration of the commitment.
One could argue that the principle of continuity of consent, applied in the context of sexual relations, is not directly applicable to surrogacy. Surrogacy does not constitute a one-off act but a prolonged commitment, comparable to a full-time job, in which the surrogate mother and the commissioning parents contract the use of the body to deliver a child. However, let us consider, from a liberal perspective and by analogy, the case of a prostitute engaging in sexual relations under contract. The initial consent cannot morally justify the fact that the prostitute does not have the right to stop the act at any time if she wishes to do so. Otherwise, it would be rape. In surrogacy, women’s rights are also violated.
Since pregnancy is unpredictable and may require urgent and far-reaching decisions, such as abortion, a crucial question arises: whose decision is it? The surrogate mother’s or the intended parents’? Even the mere formulation of this question highlights a violation of individuals’ basic rights to decide what happens to their own bodies. In Ukraine, this question was quickly answered, with the market being prioritised over human dignity: the mother has no decision-making power over her own body, unless she reimburses all medical expenses, which makes any practical autonomy virtually impossible.
Likewise, there is no guarantee that the mother won’t regret giving up the baby after birth. Because it is her child: even when the child is genetically related to the commissioning parents, the law is unequivocal. According to the principle of mater semper certa est, the woman who gives birth is legally the mother of the child4. No protocol or contract can predict the emotional attachment that develops during pregnancy and childbirth. Pregnancy is a profoundly relational process, in which biological, physical and psychological bonds are forged, which cannot be reduced to a simple service. Denying the mother the possibility of refusing the transfer of the child after birth therefore amounts to denying her legal status as a mother and violating her fundamental rights. The fact that it is impossible to revoke this postnatal consent is not simply a contractual obligation: it constitutes a radical dispossession of motherhood, which is incompatible with the very principles of filiation law and the protection of the individual.
Nonetheless, some countries, notably the United Kingdom, sought to circumvent the requirements of international law in order to make surrogacy legally permissible by establishing a postnatal consent mechanism for the mother. This solution purports to preserve maternal freedom while securing the parental project. But it raises a crucial question: how can one justify the expiry of non-consent?
If the mother refuses to hand over the child, what should be done when the child has already been entrusted to the intended parents and is potentially attached to them? Any deadline — six weeks, three months, six months — only arbitrarily shifts the attachment problem and reduces the child to a legal object that can be manipulated, subjected to procedural deadlines unrelated to their relational reality. This effectively renders the very principle of continuity and reversibility of consent completely meaningless.
Moreover, in practice, this system tends to consistently prioritise the interests of the commissioning parents, hidden behind the invocation of the “best interests of the child”. It is a particularly weak argument, given that these interests could be much more effectively guaranteed through a ban on all forms of surrogacy, given the physical, psychological and relational risks that this practice places on children. A number of British court rulings have thus denied or restricted the parental rights of mothers in favour of a booming reproductive industry, keen to preserve the confidence of sponsors and the continuity of the market. A reform bill currently under consideration would further facilitate the override of maternal refusal.
Therefore, it is both practically and morally impossible to guarantee continued consent in surrogacy. From a legal standpoint, this impossibility reveals a fundamental lack of legitimacy: the mother cannot give her fully free and reversible consent to a decision whose physical, emotional and identity implications go beyond any contractual expectations.
Not free, nor informed consent
Ultimately, even aside from these obstacles, the consent invoked in surrogacy can neither be described as free nor informed.
Consent cannot be considered informed because no one can reasonably anticipate obstetric risks, medical complications, or the psychological consequences of childbirth and separation. While many risks can be minimised, concealed, or simply impossible to predict at the time the contract is signed, they arise during the various medical stages of surrogacy. It should also be remembered that surrogacy is not a risk-free practice: ‘haemorrhaging during delivery remains one of the most dangerous complications, which, despite treatment (…) can result in the death of the woman’5.
Throughout pregnancy, unforeseen medical situations may require urgent decisions with serious consequences: embryo reduction in the case of multiple pregnancies, stopping or continuing resuscitation in cases of extreme prematurity, medical termination of pregnancy or continuing in cases of malformations, therapeutic choices impacting the survival or health of the child.
Consent is also not free due to the economic and social constraints placed on surrogate mothers, who are often in precarious situations. The commercial system of surrogacy — including in its so-called ‘altruistic’ form — is structurally based on the economic vulnerability of women. As highlighted in the UN report6 published last July on ‘manifestations of violence against women and girls in the context of surrogacy’, the vast majority of surrogate mothers come from precarious backgrounds, while the commissioning parents belong to privileged classes. French National Consultative Ethics Commitee (CCNE) Opinion No. 110 corroborates this observation: ‘In all countries that have legalised surrogacy, it has been found that the parents come from a higher social background than the surrogate mother.’7
This trend is particularly noticeable in Ukraine, which has become one of the world’s leading markets for surrogacy. Commissioning parents from France and other wealthy countries are exploiting the dire economic situation of local women to obtain children at much lower costs than in their countries of origin, and are also seeking white women, who are considered more ‘desirable’ on the reproductive market8. Likewise, in the United States, surrogacy costs nearly €150,0009, a significant sum for the commissioning parents, and yet extremely appealing to women seeking to repay a loan, feed their children, or simply survive.
When a person’s consent is obtained through money in a context of vulnerability, international law no longer refers to contractual freedom, but to exploitation.
As stated in Article 3-a of the Palermo Protocol (2000), ‘trafficking in persons’ means the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, fraud, deception, abuse of authority or a position of vulnerability, or the giving or receiving of payments or benefits to obtain the consent of a person having control over another for the purpose of exploitation‘ and specifies that ’the consent of the victim shall be irrelevant where any of the means set forth above have been used”. This legal framework is decisive: consent has no moral or legal value when it is extracted from misery.
In other words, it is a direct reproduction of class domination. Where choice is dictated by economic necessity, freedom is nothing more than a word.
Legalising surrogacy amounts to sanctioning the idea that anything can be sold or rented in the name of the neoliberal fiction of consent, regardless of the socio-economic constraints that undermine it. Some object to this criticism by pointing out that many people already accept, for economic reasons, difficult tasks within the legal framework of salaried employment. However, as feminists and socialists, we fight against all forms of exploitation: what is legal is not necessarily fair or morally legitimate. Above all, such an analogy fails to grasp the specificity of surrogacy. A profession cannot be equated with pregnancy, which involves the body in its entirety, subjectivity, and psychological and emotional dimensions that cannot be reduced to contractual logic. Therefore, the central question is not only that of the legality of consent, but also that of its moral and political significance.
Consent and moral legitimacy: a political and feminist interpretation of surrogacy
Legal contradictions are only the tip of the iceberg of a broader phenomenon: consent is not only a legal issue, but also a moral and political one, functioning as a vector for social acceptance and the invisibilisation of power relations.
For a “substantive morality” of consent
To understand what is at stake, we must return to the philosophical foundations of consent. In her book La Conversation des Sexes (2021), Manon Garcia poses an essential question: ‘Do we consider that all the choices we make, even without thinking about them, express our will, or that will in the full sense of the word implies deliberation on the means and ends of our actions?’10.
This question leads the author to distinguish between two moral approaches to consent. The first, liberal, is based on an essentially ‘formal’ morality, according to which any choice expressed, whether considered or not, authentically manifests the will of the subject and, as such, embodies their individual freedom and autonomy. Questioning this choice would therefore be paternalistic and moralistic, hindering the exercise of free will and denying the very nature of the moral agent. In this context, consent must certainly be ‘free, voluntary and informed’11, but, as Garcia points out, these characteristics must be understood in a negative rather than a positive sense. In other words, it does not presuppose a substantial understanding of the issues or consequences of the act, but rather the absence of coercion, deception or violence that could alter the freedom of choice. The content of the act, relationships of power and structural effects are disregarded. Added to these criteria is the principle of harm, according to which society can only legitimately coerce an individual against their will for one reason: to prevent them from causing harm to others. Therefore, when all these conditions are met, consent becomes ‘a sufficient condition for an individual’s action on another to be considered worthy of protection against illegitimate state intervention’12. The moral legitimacy of consent thus rests exclusively on formal respect for individual freedom. As it is conceived as the immediate expression of the subject’s autonomy, it is attributed with strong justificatory power: consenting already makes the act morally acceptable. The ‘yes’ therefore becomes a sufficient criterion of legitimacy, crystallised in the normative formula: ‘yes means yes’.
In contrast to the liberal perspective, the author draws on Kantian analysis to consider consent from a more substantial moral standpoint. She explains that, according to Kant, autonomy of will is based on human rationality, which enables humans to conceive of moral laws and obey the law they set for themselves. This capacity underpins the possibility of a universal moral law: an action is moral ‘if and only if the guiding principle behind that action is such that it can be universalised’13. This faculty of self-legislation presupposes a certain conception of human beings, which Kant refers to as the concept of humanity. What establishes moral obligation is not an external authority or the consequences of the action, but the intrinsic value of beings capable of giving themselves laws. If rational beings can recognise themselves as authors of moral law, it is because their very existence has absolute value: they are not valued solely in terms of what they produce or how they can be used, but in themselves. It is precisely this absolute value that Kant calls an end in itself. To say that human beings exist as ends in themselves means that they can never be legitimately treated as mere means to the ends of others. This requirement applies not only to relationships with others, but also to the relationship each person has with themselves: to treat oneself as a mere means would be to deny one’s own dignity. This moral concept has profoundly influenced French law, particularly in the field of bioethics, by establishing an essential distinction between persons and things.
The question is therefore no longer simply: did we consent? It becomes: what did we consent to, and does this consent respect humanity as an end in itself?
It is precisely on this ground that feminist abolitionist criticism of surrogacy is based. When tested against Kantian moral law, according to which “acting morally implies (…) a negative duty not to use others as means and a positive duty to treat them as ends, that is, to recognise them as what Kant calls “ends in themselves”14, surrogacy fails radically. In reducing the surrogate mother to a functional womb at the service of someone else’s parental project, this practice radically instrumentalises her body and her reproductive capacity. The woman is indeed a mere means of reproduction, because what interests the commissioning parents is not the woman as a person, but her womb capable of producing a child. Neither before, during, nor after the pregnancy is the woman recognised as a mother in the full sense of the word: at most, she is referred to as a ‘surrogate mother’, at worst as a ‘gestational carrier’, and this terminology is becoming normalised.
Supporters of surrogacy might argue that in many jobs, the body is used as a means of production. But it should be remembered that any model based on the exploitation of one human being in the service of another raises fundamental ethical questions. In the case of surrogacy, this problem becomes particularly acute. The woman and the child are placed at the disposal of the sponsors. The surrogate mother is thus available 24 hours a day, from morning to night, in her own flesh, since pregnancy involves making her body completely available to create life. However, this woman’s body is not under her sole control: it is the commissioning parents who determine the terms of her pregnancy. As for the child, he or she is purchased even before birth.
Now, if we follow Kant’s universal moral law, which states that an action is moral if and only if it can be universalised, surrogacy becomes even more questionable. If all women “agreed” to be surrogate mothers for others, what would happen? Male oppression of women give us a telling glimpse of what a society looks like when women are reduced to their reproductive capacities. As a reminder, this is precisely what second-wave feminists sought to combat in the 1970s: to free women from the shackles of procreation and allow them to access a sexuality emancipated from the reproductive function. As feminists, we call for the universal abolition of surrogacy because we are fighting against the patriarchal enterprise that has been explicitly based on controlling female sexuality in order to exert its control over reproduction, with the sole aim of ensuring male lineage. Historically, this was the founding shift of patriarchy. How can we legitimise a practice that reproduces and reactivates the very roots of our oppression?
Surrogate motherhood in the face of male domination
Thus, surrogacy is not just an individual issue of personal choice: it raises a central political issue, that of control over reproduction as the very foundation of power relations. Historically, patriarchy was built on the appropriation of women’s motherhood through control over their sexuality, in order to guarantee the transmission of men’s property, name and lineage. This shift from matrilineal to patrilineal societies is based precisely on this transfer of reproductive power, which transforms women’s gestational capacity into a social, legal and symbolic resource.
At the heart of this system lies a differentiated socialisation of women towards availability and sacrifice. The contemporary rhetoric of so-called ‘altruistic’ surrogacy is a particularly revealing illustration of this. It mobilises the idea of women’s natural generosity, allegedly driven by an inclination to devote themselves to others. However, this image of female altruism has historically served to legitimise the subjugation of women to the needs of others — children, spouses, family, society — while disqualifying any resistance as selfishness or moral deviance. Altruism ideology thus functions as a powerful instrument for naturalising domination.
This socialisation makes it possible to understand that patriarchy, or male domination, is based not only on the coercion exercised by men (the dominant group) over women (the dominated group), but also on the acceptance, normalisation and subjective appropriation of norms that make this domination acceptable, even desirable, for both the dominant and dominated groups. As Manon Garcia (2018) explains, a relationship of domination can thus function both as an ‘action of domination by A over B’ and as an ‘action of submission by B to A’15, in a dual dynamic of domination and submission. Patriarchal domination, involving an economy of submission, is a paradigmatic example.
At the centre of this economy is the female body. It is the fundamental stake of patriarchy. Reproductive body, sexual body, maternal body: it must be made available to serve men and the community. Making it available is not without major anthropological consequences. Women have historically been reduced to their bodies, while being deprived of full possession of them. Women are defined, and sometimes valued, for their bodies, without being able to access an authentic relationship with them. This creates a deeply rooted fragmentation between the subject and her body, a lasting dissociation between lived experiences and assigned corporeality.
But this fragmentation is not only social: it is also philosophical. It is part of the body/mind dualism tradition, separating the rational subject from its materiality and relegating the body to the realm of nature, passivity and instrumentality. However, we do not have a body: we are our body. This existential truth remains difficult for women to accept, given that their social value has long been based not on being a body-subject, but on having a body that is available. While men are recognised as embodied subjects, women are assigned an objectified corporeality.
In this context, surrogacy is not an ethical innovation, but the contemporary extension of an ancient system: one in which patriarchal power organises the appropriation of the female reproductive body under the cover of contractual freedom, moral altruism and formal consent.
Conclusion
In short, the notion of consent, perceived as the embodiment of individual freedom, with its neo-liberal influence, transforms the unity of the body into a fragmentation at the whim of others. As Marie-Anne Frison-Roche reminds us, ‘the philosophical question of this century is that of consent, because, through consent, human beings agree to no longer be unified persons who cannot be infringed upon, but rather assert that they are sets of functionalities that others can draw upon as soon as they themselves benefit from it, through the meeting of interests’16. This accurately describes the disembodiment of the person themselves, through contract law and ‘service provision’ that transforms bodies (people) into instruments of service at the disposal of others.
In the case of surrogacy, the companies promoting the practice seek to erase the commercial nature of women and children in favour of offering ‘services’. Thus, clients purchase the provision of “gestation” services, where the word ‘pregnancy’ disappears, and with it, the woman.
- Foucault, Michel. Naissance de la biopolitique : cours au Collège de France (1978-1979) ; Companyédition
EHESS/Gallimard/Seuil, 2004, p.232 ↩︎ - Salvat, Christophe. « L’éthique à l’épreuve de la Gestation pour autrui (GPA) » Raison publique, 23(1), 2018, 161-173. ↩︎
- https://www.amnesty.org/fr/latest/campaigns/2021/06/ltay-toolkit-blog-how-to-talk-and-think-about-consent/ ↩︎
- À voir : Vanney, M. A. « Mater Semper Certa Est? Human Rights Violations in Surrogacy Arrangements. » Teka Komisji
Prawniczej PAN Oddział W Lublinie, vol. 18, no. 1, 2025, pp. 505–521. https://doi.org/10.32084/tkp.9178 ↩︎ - Tourame, Pierre. « Quelle liberté pour la mère porteuse ? » Les Cahiers de la Justice, no. 2, 2016, pp.
275288. https://droit.cairn.info/revue-les-cahiers-de-la-justice-2016-2-page-275?lang=fr ↩︎ - United Nations. A/80/158. https://docs.un.org/fr/A/80/158 ↩︎
- Comité consultatif national d’éthique (CCNE). Avis n°110. 2021, p. 10. https://www.ccne-
ethique.fr/sites/default/files/2021-02/avis_110.pdf ↩︎ - The Conversation. « Vers une interdiction mondiale de la GPA : les enjeux d’un marché de 21 milliards de dollars.
» https://theconversation.com/vers-une-interdiction-mondiale-de-la-gpa-les-enjeux-dun-marche-de-21-milliards-de-dollars-
242513 ↩︎ - Haut-Commisariat des Nations Unis aux droits de l’homme (OHCHR). Protocole additionnel à la Convention des Nations
Unies contre la criminalité transnationale organisée visant à prévenir, réprimer et punir la traite des personnes, en
particulier des femmes et des enfants. https://www.ohchr.org/fr/instruments-mechanisms/instruments/protocol-prevent-
suppress-and-punish-trafficking-persons ↩︎ - Garcia, Manon. La conversation des sexes, Climats, 2021, p.74 ↩︎
- Ibid. p.81 ↩︎
- Ibid. p.83 ↩︎
- Ibid. p.87 ↩︎
- Ibid. p.91 ↩︎
- Garcia, Manon. On ne naît pas soumise, on le devient, Climats, 2018, p.39 ↩︎
- Marie-Anne Frison-Roche, « Pour protéger les êtres humains, l’impératif éthique de la notion juridique de personne », Archives de Philosophie du Droit 60, no. 1, 2018, p.366 ↩︎