Surrogacy contracts from an Economic Analysis of Law perspective

Abstract

Microeconomics allows the identification of key aspects in the decisions of economic agents; however, it is insufficient because the decisions are not only limited to the agreement between parties but also, they are affected by government policies and industry performance. On the other hand, the macroeconomic analysis emphasizes the existence of policies that influence market development such as: price controls, level of institutionality, international barriers and economic opportunities. The surrogacy agreement is a mean that allows the mutual satisfaction of the parties: the reproductive/filial aspect of the intended parents and the economic aspect of the surrogate mother. Price controls and international barriers affect pregnant mothers in multiple ways, and the effects of these controls vary among countries. Peru is a potential destination for reproductive tourism given the low costs of their medical services and high-quality standards, as well as the uniform jurisprudence that makes surrogacy agreements viable. Nonetheless, the legal gap is an inconvenience for the realization of this type of act. If surrogacy agreements are legalized, the compensation price will depend on the woman’s state of need and her opportunity cost. A permissive regulation will not always guarantee a fair exchange of resources if it is not supported by an adequate institutional framework that encourages assisted reproduction as a right of the person.