Harm and Commercial Surrogacy in Australia

1. Harm and Commercial Surrogacy in Australia Tammy Johnson

2. The Harm Principle • Mill posed the ‘the vital question of the future’ namely • ‘the nature and limits of the power which can be legitimately exercised by society over the individual’ • And so the Harm Principle was born • ‘that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign’

3. Defining Harm • To properly apply the Harm Principle to any type of conduct, it is necessary to first define ‘harm’ • Only rarely will there be no effect on others (Rees) • Must a harm also include a wrong? (Simester and von Hirsch) • Diminution of a person’s opportunities? (Raz) • Offence? (Feinberg) • How to strike a balance between liberty of the individual and the protection of society and others from harm?

4. Potential Harms in Commercial Surrogacy • Physical • To Child • Pre-natal • Post-natal • To Surrogate

5. Potential Harms in Commercial Surrogacy • Psychological • Self-worth • Identity • Abandonment or attachment

6. Potential Harms in Commercial Surrogacy • Social • Commodification • Exploitation • Break-down of traditional family values and the role of motherhood

7. CATEGORISING HARM • Two broad categories of harm • Self-regarding • No justified intervention • Other-regarding • Justification for intervention (sometimes) • Potential for overlap • Potential for other-regarding harm to be offset through informed consent