The Intersection of Medical Factors and Legal Responsibility in Surrogacy Arrangements

Abstract

The contribution addresses the complex issues and legal dilemmas that arise—or will increasingly arise in the future—for courts when dealing with questions of liability related to surrogacy. As explained in the article, the very arrangement per se entails certain risks associated not only with assisted reproduction procedure followed by potential obstetric complications during the childbirth but also generally with the protection of the health of the pregnant woman and the foetus. The contribution explores how questions of liability could be approached through the loss of chance doctrine in tort law, a concept originating in the common law tradition. However, it emphasizes that these approaches are far from straightforward, given the significant evidentiary challenges in establishing causation in medical disputes, as well as the ethical and moral considerations regarding the allocation of responsibility. By analysing these issues, the article aims to provide a conceptual framework for understanding the legal and ethical complexities surrounding surrogacy liability, highlighting the potential role of comparative perspectives and doctrinal analysis in informing future judicial decisions.