Theoretical approaches to human dignity, human rights and surrogacy

Leal regulation of transactions in the human body is in one sense a new phenomenon. Traditionally, in seeking to delineate between what is human and what is not, the common law has sought to exclude the human body from its conceptualisation of transactions as involving commodities. This approach theoretically avoids the potential for a human to become the very antithesis of personhood: namely property. From this perspective, bodily transactions that are now routine, including organ transplants, assisted reproduction and surrogacy, present a challenge for the law.

On the other hand, property itself is a construct of its time and the society in which it exists. The exclusion of humans and their bodies from regulatory frameworks had depended upon who is within the law and who is homo sacer (outside the law), and how social custom perceives the body from time to time. For example, at one end of a spectrum of bodily transactions, slavery was actively practised in England until the late eighteenth century. Slavery is now completely prohibited within an international human rights framework. Far more recently, the bodies of children and women have been under the control of the head of the household, the pater familias, and the paternalistic state.