Artificial Intelligence in Surrogacy: Legal Challenges, Liability, and the Protection of Vulnerable Parties

Paper Code: AIJACLAV01RP2026

Category: Research Paper

Date of Publication: Sep 10, 2026

Citation: Mrs. Ueda Kokuja, “Artificial Intelligence in Surrogacy: Legal Challenges, Liability, and the Protection of Vulnerable Parties”, 6, AIJACLA, 01, 01-10 (2025)

Author Details: Mrs. Ueda Kokuja, PhD Candidate, Faculty Of Legal, Political And International Relations Sciences, European University of Tirana, Albania

Abstract

Despite the promise of better outcomes and efficiency, artificial intelligence in reproductive technology is changing the legal environment for surrogacy and complicating the family law landscape. Artificial intelligence is increasingly used to match intended parents with surrogate mothers, conduct medical screenings and assist parents in making decisions. While the development is bringing benefits, the uncertainty created is uncontrolled.

This paper examines the legal implications of AI-assisted surrogacy, focusing on issues of liability, contractual validity, and the determination of parental rights. The involvement of algorithmic systems challenges traditional legal principles, particularly in situations where harm may result from automated decisions or inaccurate data. The lack of transparency further complicates the allocation of responsibility among the different actors involved.

From a human rights perspective, the use of AI in surrogacy raises concerns regarding the protection of the best interests of the child, as well as the autonomy and dignity of surrogate mothers. The paper highlights the risks of exploitation and unequal power relations, which may be intensified through technological mediation, especially in cross-border contexts. The paper argues that current legal frameworks are not adequately equipped to regulate the intersection between artificial intelligence and surrogacy, emphasizing the need for clearer legal standards and stronger regulatory oversight to ensure the protection of vulnerable parties.

Keywords:- Artificial Intelligence, Surrogacy, Legal Liability, Human Rights, Family Law.

Paper Code: AIJACLAV01RP2026

1. Introduction

Surrogacy has emerged as one of the most complex and contested areas within contemporary family law, situated at the intersection of private autonomy, contractual freedom, and the protection of fundamental human rights. Traditionally defined as an arrangement whereby a woman agrees to carry and deliver a child on behalf of another individual or couple, surrogacy has evolved significantly alongside advances in assisted reproductive technologies (ARTs) (Brinsden, 2003). While such arrangements provide new reproductive possibilities, they simultaneously generate profound legal uncertainties concerning the determination of parenthood, the enforceability of contractual obligations, and the safeguarding of the rights and dignity of the parties involved (Horsey & Biggs, 2015).

The rapid development of artificial intelligence (AI) has further transformed the landscape of reproductive technologies, including surrogacy. AI-based systems are increasingly utilized in processes such as the matching of intended parents with surrogate mothers, predictive medical screening, and decision-making support mechanisms as Luciano Floridi et aI has argued (2018). Although these technologies promise enhanced efficiency, objectivity, and access to reproductive services, they introduce novel legal challenges that existing legal frameworks are not adequately equipped to address (Calo, 2015). In particular, the integration of algorithmic systems into reproductive decision-making raises concerns regarding opacity, bias, and the reliability of automated outcomes as Mittelstadt et aI has mentioned (2016).

From a legal standpoint, the incorporation of AI into surrogacy arrangements fundamentally challenges established doctrines of liability and accountability. Traditional legal models, grounded in human agency and fault-based responsibility, struggle to accommodate situations in which harm may arise from autonomous or semi-autonomous technological systems (Pagallo, 2013). The question of attribution of responsibility—whether to developers, healthcare providers, or intended parents—remains unresolved, thereby creating significant regulatory gaps. Moreover, the contractual framework governing surrogacy may be undermined by the involvement of AI systems, particularly where informed consent and transparency are compromised.

Equally important are the human rights implications associated with AI-assisted surrogacy. The European Convention on Human Rights (European Convention on Human Rights , 1950) and the United Nations Convention on the Rights of the Child (United Nations Convention on the Rights of the Child , 1989) emphasize the protection of dignity, privacy, and the best interests of the child, all of which are implicated in surrogacy arrangements. The use of AI intensifies concerns related to the processing of sensitive personal and medical data, raising issues of data protection and informational self-determination (Mantelero, 2018). Furthermore, the risk of exploitation of surrogate mothers, particularly in socio-economically vulnerable contexts, may be exacerbated by technologically mediated decision-making processes that lack transparency and oversight.

This paper seeks to examine the legal challenges arising from the intersection of artificial intelligence and surrogacy, focusing on issues of liability, regulatory insufficiency, and human rights protection. By adopting a doctrinal and analytical approach, the paper aims to demonstrate that existing legal frameworks are inadequate to address the complexities introduced by AI, and to argue for the development of coherent regulatory standards grounded in fundamental rights and legal certainty.

1. Literature Review

Surrogacy has been a study in the intersections of family law, contract law, and human rights. Early works discussed the contractual nature of surrogacy, with concerns about its enforceability and ethics (Ragoné, 1994), while subsequent studies focused on uncertainty surrounding the definition of parenthood and conflicts between genetic, gestational, and intended parenthood (Jackson 2001). These issues remain hotly contested in jurisdictions where there is not a complete legislative system, and that result in incoherent judicial and legal approaches (Trimmings & Beaumont, 2013).

A significant strand of the literature has addressed the human rights implications of surrogacy. Scholars have highlighted the importance of safeguarding the best interests of the child, as well as protecting surrogate mothers from exploitation, particularly in cross-border arrangements (Deonandan; Green; van Beinum, 2012). Concerns regarding inequality and commodification have also been raised, with arguments that surrogacy may reinforce global disparities between economically advantaged intended parents and vulnerable surrogate mothers (Pande, 2014). At the same time, other authors defend surrogacy as an expression of reproductive autonomy, emphasizing the need for balanced regulation rather than outright prohibition (Horsey & Biggs, 2015).

More recently, legal scholars have begun to look at the impact of technological changes in reproductive practices, especially artificial intelligence. AI is a part of more healthcare industries like reproductive medicine, being used in predictive analytics, decision-making, and matching (Topol, 2019). Although these innovations can be seen as more efficient and provide higher outcomes, it raises legal issues around accountability, transparency, and bias (Mittlerstadt et al. 2016). The transparency of algorithmic decisions puts traditional legal frameworks to the test, specifically when determining who is liable for harm caused by automated systems (Calo, 2015).

Despite the growing body of literature on both surrogacy and artificial intelligence, the intersection between these two fields remains underexplored. Existing research tends to address surrogacy and AI separately, without fully considering how algorithmic systems may reshape legal relationships and responsibilities within surrogacy arrangements. This paper seeks to contribute to the literature by bridging this gap, offering a legal analysis of AI-assisted surrogacy with a focus on liability, regulation, and human rights protection.

3. Methodology

This study adopts a doctrinal legal methodology, complemented by a comparative and analytical approach. The doctrinal method is employed to examine existing legal principles governing surrogacy, including rules related to contractual validity, parenthood, and liability. This involves the analysis of legal norms derived from legislation, judicial decisions, and international human rights instruments, with particular attention to their applicability in the context of emerging technologies (McCrudden, 2006).

In addition, the paper incorporates a comparative perspective in order to identify regulatory patterns and gaps across different legal systems. Comparative legal analysis allows for a deeper understanding of how surrogacy is regulated in diverse jurisdictions and how these frameworks respond—or fail to respond—to technological developments (Siems, 2014). This approach is particularly relevant in the context of cross-border surrogacy, where conflicts of law and jurisdictional challenges frequently arise.

The analytical component of the methodology focuses on evaluating the legal implications of artificial intelligence in surrogacy practices. This includes an assessment of issues such as algorithmic decision-making, data protection, and the allocation of legal responsibility among various actors involved in AI-assisted reproductive processes. The study also applies a human rights-based approach, examining how fundamental rights—such as the right to privacy, human dignity, and the best interests of the child—are affected by the integration of AI technologies (Mantelero, 2018).

By combining doctrinal, comparative, and analytical methods, this research aims to provide a comprehensive legal assessment of the challenges posed by the intersection of artificial intelligence and surrogacy, and to identify the need for more coherent and effective regulatory frameworks.

4. Surrogacy as a Legal Concept

Surrogacy constitutes a complex legal arrangement situated at the intersection of family law, contract law, and bioethics. It is generally defined as an agreement whereby a woman (the surrogate mother) agrees to carry and give birth to a child on behalf of another individual or couple (the intended parents), with the intention of transferring parental rights after birth (Brinsden, 2003). From a legal standpoint, surrogacy challenges traditional notions of motherhood and parenthood, which have historically been grounded in biological and gestational criteria.

A fundamental distinction in surrogacy law is drawn between traditional surrogacy and gestational surrogacy. In traditional surrogacy, the surrogate mother is genetically related to the child, as her own egg is used, whereas in gestational surrogacy, the surrogate carries an embryo created using the gametes of the intended parents or donors (Jackson, 2001). This distinction has significant legal implications, particularly in determining parental rights and responsibilities. Gestational surrogacy is generally considered less legally contentious, as it separates genetic and gestational motherhood, although disputes may still arise regarding the enforceability of agreements and the recognition of intended parenthood.

The legal nature of surrogacy agreements remains highly contested. In many jurisdictions, such agreements are treated as contracts, raising questions about their enforceability and the extent to which contractual principles should apply to arrangements involving human reproduction (Horsey & Biggs, 2015). Courts have often been reluctant to fully enforce surrogacy contracts, especially where doing so may conflict with public policy or the best interests of the child. As a result, surrogacy agreements frequently exist in a state of legal uncertainty, with outcomes depending on judicial discretion rather than clear statutory rules.

One of the central legal challenges concerns the determination of legal parenthood. Different jurisdictions adopt varying approaches, with some recognizing the surrogate mother as the legal parent at birth, while others prioritize genetic or intended parenthood (Trimmings & Beaumont, 2013). This divergence creates particular difficulties in cases of cross-border surrogacy, where conflicting legal systems may lead to situations in which a child’s legal status is uncertain or unrecognized. Such conflicts raise serious concerns regarding nationality, citizenship, and the protection of the child’s rights.

In addition, surrogacy raises important ethical and human rights considerations. Critics argue that surrogacy may lead to the commodification of the female body and the exploitation of economically vulnerable women, particularly in transnational contexts (Pande, 2014). Others emphasize the importance of reproductive autonomy, defending the right of individuals to enter into surrogacy arrangements as an expression of personal freedom as is said in Deonandan et AI (2012). These competing perspectives highlight the need for a balanced legal framework that protects all parties involved while respecting individual autonomy.

Overall, surrogacy remains a legally fragmented and evolving field. The absence of harmonized regulation at the international level contributes to uncertainty and inconsistency, particularly as technological developments—such as artificial intelligence—begin to influence reproductive practices. This underscores the need for clearer legal definitions and more coherent regulatory approaches capable of addressing both traditional and emerging challenges in surrogacy law.

5. The Role of Artificial Intelligence in Surrogacy

The integration of artificial intelligence into reproductive technologies is increasingly transforming the practice of surrogacy, introducing new mechanisms for decision-making, data processing, and risk assessment. AI systems are now employed in various stages of assisted reproduction, including the matching of intended parents with surrogate mothers, predictive medical screening, and the management of clinical and contractual data (Topol, 2019). These technological developments aim to enhance efficiency, reduce uncertainty, and optimize reproductive outcomes. However, their use raises complex legal and ethical questions that extend beyond traditional regulatory frameworks.

One of the primary applications of AI in surrogacy involves algorithmic matching systems, which are designed to pair intended parents with suitable surrogate mothers based on medical, psychological, and socio-economic criteria. While such systems may increase efficiency and reduce human bias, they also introduce the risk of algorithmic discrimination and lack of transparency as is said in Mittelstadt et aI (2016). From a legal perspective, this raises concerns regarding fairness, equality, and the potential violation of non-discrimination principles, particularly where automated decisions significantly affect individuals’ reproductive choices.

AI is also increasingly used in medical screening and predictive analytics within reproductive medicine. Machine learning models can assess the likelihood of successful implantation, identify potential health risks, and support clinical decision-making processes (Russell & Norvig, 2021). While these tools may improve medical outcomes, their reliance on large datasets introduces challenges related to data accuracy, reliability, and accountability. In cases where incorrect predictions lead to harm, determining legal responsibility becomes particularly problematic, as it may involve multiple actors, including software developers, healthcare providers, and fertility clinics.

Another significant dimension concerns the management and processing of sensitive personal and medical data. AI systems in surrogacy rely heavily on extensive data collection, including genetic information, medical histories, and personal profiles of both surrogate mothers and intended parents. This raises serious concerns regarding data protection, privacy, and informed consent (Mantelero, 2018). The use of such data must comply with fundamental legal principles, yet existing regulatory frameworks often fail to adequately address the specific risks associated with AI-driven data processing in reproductive contexts.

Furthermore, the increasing reliance on AI in surrogacy may alter traditional power dynamics between the parties involved. Decision-making processes that were previously based on human judgment may become influenced—or even dominated—by algorithmic recommendations. This shift raises questions about autonomy and control, particularly for surrogate mothers, whose choices may be shaped by opaque technological systems. The lack of transparency in AI decision-making, often referred to as the “black box” problem, further complicates the ability of individuals to understand or challenge outcomes that directly affect their rights.

Overall, the role of artificial intelligence in surrogacy represents a significant evolution in reproductive practices, but one that is not yet adequately addressed by existing legal frameworks. The incorporation of AI introduces new risks related to bias, accountability, and data protection, highlighting the urgent need for legal systems to adapt to technological developments. Without clear regulatory standards, the use of AI in surrogacy may undermine legal certainty and the protection of fundamental rights.

6. Legal Challenges and Liability

The integration of artificial intelligence into surrogacy practices introduces significant legal challenges, particularly in the areas of liability, contractual validity, and the allocation of responsibility among the parties involved. These challenges become especially complex in jurisdictions where surrogacy itself remains unregulated or insufficiently addressed by law, as is the case in Albania. The absence of a clear legislative framework not only creates uncertainty regarding the legality of surrogacy arrangements but also complicates the application of existing legal principles when new technologies are involved (Trimmings & Beaumont, 2013).

From a liability perspective, the use of AI in surrogacy raises fundamental questions concerning the attribution of responsibility in cases of harm. Traditional legal systems are based on the notion of human agency and fault, requiring the identification of a person whose conduct has caused damage. However, in AI-assisted processes, decision-making may be partially or fully automated, thereby blurring the lines of responsibility (Calo, 2015). Scholars have emphasized that algorithmic decision-making challenges existing models of liability, particularly where outcomes are influenced by opaque systems and complex data inputs (Mittelstadt et al., 2016). In such cases, determining whether liability lies with software developers, healthcare providers, or institutions becomes increasingly difficult (Pagallo, 2013).

In the Albanian context, these issues are further intensified by the absence of specific legal provisions governing surrogacy. Albanian family law does not explicitly regulate surrogacy arrangements, nor does it provide guidance on the determination of parenthood in such cases. As a result, disputes arising from such arrangements must be addressed through general provisions of civil law, including contract law and tort liability. However, these general frameworks are not designed to respond to the complexities introduced by technologically mediated reproductive practices. The lack of statutory clarity creates legal uncertainty not only for intended parents and surrogate mothers but also for children born through such arrangements, particularly in relation to their legal status and identity (Horsey & Biggs, 2015).

Moreover, the introduction of AI technologies into this unregulated field further complicates the situation. Without specific legal standards governing the use of algorithmic systems in reproductive decision-making, concerns arise regarding the validity of consent and the transparency of decision-making processes. Legal scholars have highlighted that informed consent may be undermined where individuals cannot fully understand or evaluate the functioning of AI systems, particularly in highly technical medical contexts (Mantelero, 2018). This raises questions not only about contractual validity but also about the protection of individual autonomy.

The challenges are particularly evident in cross-border surrogacy involving Albanian citizens. Intended parents may enter into surrogacy arrangements in jurisdictions where the practice is legally regulated, only to face legal uncertainty upon returning to Albania. Comparative studies have shown that cross-border surrogacy often results in conflicts of law and difficulties in the recognition of parental status, which may ultimately affect the rights and legal identity of the child (Trimmings & Beaumont, 2013). The involvement of AI technologies in such arrangements introduces additional complexities, particularly in relation to data processing, medical decision-making, and transnational contractual relationships.

Furthermore, the absence of regulation in Albania increases the risk of exploitation and structural inequality. Surrogacy arrangements, particularly when combined with advanced technological tools, may exacerbate existing socio-economic disparities between the parties involved (Pande, 2014). AI-based matching systems may reinforce such inequalities by prioritizing certain characteristics or criteria, leading to indirect forms of discrimination that are difficult to detect or regulate as is said in Mittelstadt et aI (2016). In the absence of oversight mechanisms, these risks remain largely unaddressed.

In light of these considerations, it becomes evident that the Albanian legal system is currently ill-equipped to address the intersection of surrogacy and artificial intelligence. The lack of specific legislation, combined with the increasing complexity of technological developments, creates a situation of legal uncertainty that poses risks for all parties involved. There is an urgent need for legislative intervention aimed at establishing clear rules on liability, ensuring transparency in the use of AI systems, and providing effective protection for the rights of children, surrogate mothers, and intended parents. Without such reforms, the coexistence of legal ambiguity and technological innovation may lead to unpredictable and potentially harmful outcomes.

7. Human Rights Perspective

The intersection of surrogacy and artificial intelligence raises profound human rights concerns, particularly in relation to the protection of vulnerable parties and the preservation of fundamental legal principles. Surrogacy arrangements inherently involve multiple rights-bearing subjects, including the child, the surrogate mother, and the intended parents. The integration of AI into these arrangements further complicates the protection of these rights, as decision-making processes become increasingly mediated by technological systems.

At the core of the human rights analysis lies the principle of the best interests of the child, which is recognized both at the international and national level. Article 3 of the United Nations Convention on the Rights of the Child (United Nations Convention on the Rights of the Child , 1989) establishes that the best interests of the child shall be a primary consideration in all actions concerning children. This principle is also reflected in Albanian legislation, particularly in the Family Code of the Republic of Albania (Family Code of the Republic of Albania , 2013), which emphasizes the protection of the child’s welfare and legal status. However, in the absence of specific provisions regulating surrogacy, the application of this principle becomes uncertain, particularly in cases involving children born through cross-border arrangements.

The determination of legal parenthood represents one of the most significant challenges in the Albanian context. The Family Code of Albania establishes motherhood on the basis of childbirth, meaning that the woman who gives birth to the child is considered the legal mother. This approach creates a direct conflict with surrogacy arrangements, where the intention is to transfer parental rights to the intended parents. In the absence of explicit legal provisions recognizing surrogacy, such arrangements may not be legally enforceable, thereby creating uncertainty regarding the legal status and identity of the child.

The rights of surrogate mothers are also protected under the Constitution of the Republic of Albania (Constitution of the Republic of Albania, 1998), which guarantees human dignity, personal autonomy, and the right to private life (Articles 15 and 35). These principles are further reinforced by Albania’s obligations under the European Convention on Human Rights (European Convention on Human Rights , 1950), particularly Article 8 concerning the right to respect for private and family life. However, the lack of specific regulation governing surrogacy raises concerns regarding the potential exploitation of women, especially in situations where economic inequality may influence their participation in such arrangements (Pande, 2014).

The introduction of artificial intelligence into surrogacy practices intensifies these concerns. AI systems rely on the processing of sensitive personal and medical data, which engages the right to data protection. In Albania, this right is regulated by Law No. 9887/2008 “On the Protection of Personal Data”, which establishes principles for the lawful processing of personal data. Nevertheless, the application of this law to AI-driven reproductive technologies remains limited, particularly in relation to automated decision-making and algorithmic transparency (Mantelero, 2018).

Furthermore, the use of AI raises concerns regarding transparency and accountability, which are essential components of the rule of law. The opacity of algorithmic systems may limit individuals’ ability to understand and challenge decisions that affect their rights, thereby undermining procedural fairness (Calo, 2015). In a legal system such as Albania’s, where no specific safeguards exist for AI in reproductive contexts, this lack of transparency may create significant risks for the protection of fundamental rights.

In light of these considerations, it is evident that Albania lacks a comprehensive legal framework capable of addressing the intersection between surrogacy, artificial intelligence, and human rights. The absence of clear legislation not only creates legal uncertainty but also exposes vulnerable parties to potential rights violations. A human rights-based approach to regulation is therefore essential, requiring the development of specific legal provisions that ensure the protection of the child’s best interests, safeguard the dignity and autonomy of surrogate mothers, and establish clear standards for the use of AI in reproductive practices.

8. Conclusion

The increasing integration of artificial intelligence into surrogacy practices represents a significant shift in the regulation of reproductive technologies, challenging traditional legal frameworks and exposing critical gaps in existing systems. As this paper has demonstrated, the intersection between surrogacy and AI raises complex legal questions concerning liability, contractual validity, parenthood, and the protection of fundamental human rights.

From a legal perspective, the involvement of AI in surrogacy arrangements disrupts established doctrines based on human agency and fault-based responsibility. The use of algorithmic systems complicates the attribution of liability, particularly in cases where harm arises from automated decision-making or data-driven processes. This creates uncertainty not only for legal practitioners but also for the individuals directly involved in surrogacy arrangements, including surrogate mothers, intended parents, and children.

The analysis has further highlighted that these challenges are particularly pronounced in jurisdictions such as Albania, where surrogacy remains unregulated. The absence of a clear legal framework governing surrogacy results in significant uncertainty regarding the determination of parenthood, the enforceability of agreements, and the recognition of rights. When combined with the growing use of artificial intelligence, this legal vacuum becomes even more problematic, as existing legal principles are not equipped to address technologically mediated reproductive practices.

From a human rights perspective, the integration of AI into surrogacy raises serious concerns regarding the protection of vulnerable parties. The best interests of the child, the dignity and autonomy of surrogate mothers, and the right to privacy and data protection must remain central considerations in any regulatory approach. However, the lack of transparency and accountability associated with many AI systems poses a direct challenge to these principles, potentially undermining the effective protection of fundamental rights.

In light of these findings, it is evident that there is an urgent need for comprehensive legal reform. Legal systems must adapt to the evolving realities of reproductive technologies by establishing clear rules on liability, ensuring transparency in algorithmic decision-making, and strengthening safeguards for human rights. In the Albanian context, this requires the adoption of specific legislation regulating surrogacy, as well as the integration of legal standards addressing the use of artificial intelligence in reproductive practices

Ultimately, the regulation of AI-assisted surrogacy must be grounded in a balanced approach that reconciles technological innovation with the protection of human dignity and legal certainty. Without such an approach, the rapid advancement of technology risks outpacing the law, leaving fundamental rights insufficiently protected in an increasingly complex reproductive landscape.

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[2] AIR 2014 SC 187

[3] Section 180 of Bharatiya Nagarik Suraksha Sanhita,2023.

[4] Prakash Singh vs. Union of India, (2006) 8 SCC 1