A number of countries and states prohibit surrogacy except in cases of “medical necessity” or for those with specific medical conditions. Healthcare providers in some countries have similar policies restricting the provision of clinical assistance in surrogacy. This paper argues that surrogacy is never medically necessary in any ordinary understanding of this term. The author aims to show first that surrogacy per se is a socio-legal intervention and not a medical one and, second, that the intervention in question does not treat, prevent, or mitigate any actual or potential harm to health. Legal regulations and healthcare-provider policies of this kind therefore codify a fiction—one which both obscures the socio-legal motivations for surrogacy and inhibits critical examination of those motivations while mobilizing normative connotations of appeals to medical need. The persisting distinction, in law and in moral discourse, between “social” and “medical” surrogacy, is unjustified.

The recognition of a health care service as medically necessary under the Canada Health Act is contingent on a variety of practical and political factors. This article examines how in vitro fertilization (IVF) came to be understood as a medically necessary service in Ontario, focusing on the establishment of public funding for one cycle of treatment. The article argues that the legitimacy of medical necessity in the contemporary period is tied to three interrelated factors: the recognition of a service as sufficiently “medical,” as efficient and as urgent—that is, something to be funded now and not later. By applying this framework to the case of IVF in Ontario, the article demonstrates not only the ongoing malleability of medical necessity but also how the government of Ontario has mobilized the three aspects of medical necessity to make a case for the public funding of a highly contested health care service.