Sunday, 1 September 2013

American Bar Association draft position paper on proposed Hague surrogacy convention

In my role with the Executive Council, American Bar Association, Family Law Section, Assisted Reproductive Technology Committee, I have co-ordinated the drafting of a position paper as to a proposed Hague Convention as to international surrogacy. Depending on the form of the convention, the convention may have a huge impact on how international surrogacy occurs. The paper is very much a paper by the authors, experienced surrogacy lawyers, and has not been adopted by the American Bar Association.
[The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of either the American Bar Association or the Section of Family Law.  Nothing contained herein is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel.  These materials are intended for educational and informational purposes only.  This position paper had not yet been approved by either the Section of Family Law, any other ABA section, or the ABA Board of Governors.]

 

ABA Position Paper

Regulation of International Surrogacy Arrangements

 

 

Executive Summary

Issue

 

Recent advancements in medical technology have enabled the expansion of third-party assisted reproduction (surrogacy) for infertile couples and single individuals.  When surrogacy arrangements involve individuals from more than one nation, the legal status of the individuals and the resulting child may be uncertain.  Situations where “stateless” children were born through international surrogacy arrangements have prompted a discussion about whether a Hague Convention on International Surrogacy is needed.

 

 

Background

 

The Permanent Bureau of the Hague Conference on Private International Law’s Council on General Affairs and Policy is currently engaged in research to determine how to effectively address the issues posed by international surrogacy arrangements.  Of greatest concern are situations where the legal parentage, nationality, and immigration status of the child born through international surrogacy is unclear due to conflicting national laws governing these matters.  Of additional concern are the potential for exploitation of individuals in the international surrogacy process, particularly the exploitation of women.

 

In one of the first published articles addressing the Hague's attention to the issues that sometimes result from international surrogacy arrangements, Dr. Katarina Trimmings and Prof. Paul Beaumont of the University of Aberdeen School of Law, through a grant by the Nuffield Foundation, have developed a framework for a Hague Convention on International Surrogacy, largely modeled on the Hague Convention on Adoption.   The framework proposed by Trimmings and Beaumont calls for national and international regulation of international surrogacy arrangements.  While the proposal calls for flexibility for the scope of regulation at the national level to be decided by each nation, several recommendations are proffered, including: evaluation of the parental fitness of the intended parents, reliance on the “best interest of the child” doctrine, the requirement of a biological connection between intended parents and the child, and guidelines for compensation of the surrogate and gamete donors.

 

 

ABA Position

 

While the ABA fully supports the notion of an international convention concerning international surrogacy, the ABA feels that the appropriate focus of an international convention should be on the conflict of law and comity issues that arise in international surrogacy rather than on regulating the industry itself.  Specifically, the ABA views the current proposal by Trimmings and Beaumont  as deeply flawed, to such a degree that it is better to have no convention than to have a convention along the lines they propose.

 

 

 

The ABA’s position is:

 

1.      The Right to Reproduce is a fundamental right.

 

The ABA recognizes the right of individuals to procreate without excessive regulatory interference.  Surrogacy is a form of assisted reproduction.  The legal position of intended parents creating a new life through a surrogacy arrangement is distinct from the legal position of adoptive parents seeking to raise an existing child as their own.

 

2.      Surrogacy and adoption are different processes, and should not be conflated.

 

The ABA recognizes that surrogacy and adoption are separate and distinct solutions for people to achieve parenthood.  Surrogacy is a medical solution to infertility, whether the infertility is physiological or social (based on relationship status), and is therefore a method of reproduction.  Adoption is the transfer of legal responsibility over an existing child from one party (or the state) to another.  All societies permit adoption, while many jurisdictions ban gestational surrogacy in one way or another.  Regulating these two processes in similar fashion is inappropriate.

 

3.      Different processes ought to be regulated differently.

 

The ABA is concerned that an approach to regulating surrogacy that is substantially equivalent to adoption regulation will frustrate intended parents’ right to reproduce.   The state appropriately exercises great care in adoption process, as this process concerns an existing citizen child.  The state does not, however, have a role in regulating so-called "natural" reproduction, as this would be an offence to the right to reproduce.  The state concern in the surrogacy process it to ensure that the rights of the parties involved are upheld.  Any regulation of surrogacy should be viewed in this context.

 

4.      Establishing Central Authorities to oversee surrogacy arrangements is opposed.

 

The ABA is concerned that establishing Central Authorities to regulate surrogacy is likely to lead to:

·         Increased interference with intended parents’ right to reproduce;

·         Increased risk of discrimination in the surrogacy process;

·         Decreased flexibility/freedom to contract for all parties (surrogates and intended parents);

·         Increased cost for intended parents;

·         Increased delay for intended parents;

·         Decreased transparency and certainty in the process; and

·         Increased burdens upon taxpayers

Further, the ABA feels that establishing Central Authorities would not significantly  increase in protection for surrogates or children,  Such protection is more effectively managed on a scale broader than just within the context of surrogacy arrangements.

 

5.      The ABA is concerned as to the screening of potential intended parents.

 

It is a matter of concern that many countries currently discriminate against intended parents who are single, older, disabled, or homosexual in the adoption process. While the ABA supports the principle of screening intended parents for the narrow purpose of suitability to engage in the surrogacy process, the ABA is concerned that screening will be used by many countries to deny their citizens the ability to seek to become intended parents because of their sexual orientation, marital status, or other inappropriate characteristics.

 

6.      Bilateral treaties to regulate international surrogacy arrangements should be discouraged.

 

The Trimmings and Beaumont model proposes that, in addition to the proposed Convention, countries on a case by case basis enter into bilateral treaties as to commercial surrogacy. The ABA is very concerned that this will lead to:

·         A plethora of disparate treaties;

·         which will take many years to negotiate;

·         which will be very hard to dismantle if and when a comprehensive multilateral solution is reached; and

·         will, in turn, unnecessarily complicate matters and severely reduce legitimate options currently available.

 

In sum, the ABA is concerned that these treaties may cause further cost, delay, and heartache to intended parents who choose to pursue surrogacy.

 

7.      The ABA is of the view that the Hague should be more focused on reducing conflicts of laws affecting intended parents and children born through international surrogacy and encouraging comity.

 

To the extent that the Hague might be involved with the regulation of international surrogacy arrangements, the ABA’s position is that the Hague’s most effective role is to help navigate the legal conflicts among nations; specifically, developing a framework to allow nations to navigate the conflict of laws and comity problems that sometimes result from international surrogacy arrangements and thereby avoid the problems of stateless children, conflicting parentage determination processes, and the lack of recognition of those children in the intended parents’ home country.

 

8.      The ABA is of the view that it is not necessary to require a genetic link between intended parent and child.

 

The journey for intended parents who choose to pursue surrogacy is often the journey of last resort. In general, most intended parents pursuing surrogacy seek a child who is their genetic offspring. Sometimes, due to the cruel tricks of biology and reproduction, intended parents may not be able to have a genetic connection with their child.  For example, after many years of IVF, a couple may find that the female partner is unable to carry a baby safely to term.  The couple may also find that their own gametes are insufficient to conceive, leading them to turn to donated genetic material.  If there is a requirement that this couple must have a genetic link to their child born through surrogacy, they will be denied the fundamental right to reproduce - even if they use genetic material from siblings or other family members.  This hypothetical differs only in the use of a surrogate from the cases where children, born to a woman in the context of a marriage, are deemed to be children of the marriage even when donor gametes are used.   As long as the parties involved consent to the use of donor gametes, the law in many jurisdictions has long recognized the legal parentage of the intended parents.  This recognition should be maintained even in the case where the child is born via surrogacy. 

 

Further, a requirement for a genetic link to a child born through surrogacy forecloses the possibility of using donated genetic material, including embryos, in the process.  Many unused embryos remain stored in cryopreservation; these embryos are an existing source of potential genetic material that could be used in surrogacy arrangements.

 

9.      The ABA is of the view that the rights of expatriate intended parents must be respected.

 

It is not uncommon that intended parents who are citizens of country A, but living in country B, seek a child through surrogacy in country C.  These intended parents must navigate a minefield of regulation to ensure that the child can return to country B, but be a citizen of country A.  A Convention that focuses on the conflict of laws and comity problems inherent in international citizenship and parentage proceedings (which are generally required in surrogacy matters) would serve the needs of the expatriate intended parents as well as other intended parents who pursue surrogacy across national boundaries and the children resulting from these arrangements.  Further, by focusing on the conflict of laws and comity problems, the needs of all expatriate parents can be met, not just those expatriate parents who pursue surrogacy. 

 

10. The ABA is of the view that any Convention is unlikely to be successful without the accession of both the United States and India, and that the appropriate course is to ensure appropriate regulation in India.

 

The United States and India have the largest surrogacy industries.  The Indian industry has grown exponentially in the last few years.  The ABA understands that the Indian surrogacy industry is now estimated to be worth over $2 billion a year.  The ABA is of the view that the concerns raised at the Hague stem in part because of unstated concerns about the rise of surrogacy in India, which are best dealt with not by a Convention but by the passage of appropriate laws in India regulating surrogacy clinics and associated entities, such as donor clinics.  It is noted that there have been bills drafted to regulate Assisted Reproductive Technology (ART) in India in one form or another since 2008.  The various forms of proposed legislation, and the uneven enforcement of existing regulations over the years have resulted in widespread confusion over the legal aspects of surrogacy in India.  Therefore, India should be encouraged to continue to regulate its ART industry in a transparent manner so that the current uncertainties may be mitigated.  Appropriate laws should allow for the protection of children, surrogates, and intended parents, so as to maximize standards and conditions, and minimize exploitation.

 

By contrast, the US industry is regulated at the state level.  There is a wide range of approaches to surrogacy in the United States, from prohibitions (including criminalization) to statutorily defined processes for surrogacy.  Further, the professionals (lawyers, doctors, and others) are subject to standards, ethical guidelines, and codes of conduct.  Given the various interests at stake (states and professional groups), accession of the United States to a Convention that would regulate the particulars of surrogacy arrangements seems unlikely.  A Convention focused on conflict of laws and comity problems could be more successful within our political process.

 

 

11. The ABA is of the view that Human Rights abuses are not inherent or exclusive to surrogacy arrangements, and therefore must be addressed separately from surrogacy arrangements.

 

The ABA is of the view that concern over Human Rights abuses is part of the impetus of the focus on international surrogacy arrangements at the Hague.  Exploitation of women, trafficking of women and children, and other abuses are often cited by critics of surrogacy.  While it is unfortunately true that human rights violations have occurred within the context of surrogacy, violations of human rights do not occur only within the context of surrogacy.  Human Right abuses must be addressed on the broad scale internationally and locally : if a woman is trafficked, the Human Rights violation must be addressed whether the trafficking is for the purpose of surrogacy, sex, forced labor, or any other reason.  Regulation of the surrogacy industry for the purpose of reducing Human Rights violations has the potential to distract from the greater problems of trafficking and exploitation, and to stigmatize surrogacy arrangements (and the children born through them). 

 


 

Discussion

A. INTRODUCTION

Recent advancements in medical technology have enabled the expansion of third-party assisted reproduction (surrogacy) for infertile couples and single individuals.  When surrogacy arrangements involve individuals from more than one nation, the legal status of the individuals and the resulting child may be uncertain.  Situations where “stateless” children were born through international surrogacy arrangements have prompted a discussion about whether some form of international regulation is needed, such as a Hague Convention on International Surrogacy.

The Permanent Bureau of the Hague Conference on Private International Law’s Council on General Affairs and Policy is currently engaged in research to determine how to effectively address the issues posed by international surrogacy arrangements.[1]  Of greatest concern are situations where the legal parentage, nationality, and immigration status of the child born through international surrogacy are unclear due to conflicting national laws governing these matters.  Of additional concern is the potential for exploitation of individuals in the international surrogacy process, particularly the exploitation of the women who act as gestational carriers.

The question, therefore, is how to establish a regulatory framework to help avoid stateless children and exploitation of women.  One approach would be to regulate the international surrogacy industry itself.  This industry regulation could take the form of a Convention on Surrogacy that establishes rules specifically for surrogacy arrangements involving participants from more than one country.  Another approach would be to regulate the acceptance of parentage documents between states.  This approach could potentially be accomplished with existing international agreements, or through the implementation of new international agreements that are not necessarily specific to international surrogacy arrangements.

Surrogacy itself may not be the real issue.  Rather, the uncertainty with these arrangements is a symptom of a more general problem of irreconcilable family and citizenship laws at the international level.  It is important to note that these legal issues may arise in cases that do not involve surrogacy.[2]  Thus, international regulation focused solely on surrogacy arrangements may be under-inclusive.  Rather than focus on the regulation of the international surrogacy market itself, international agreement on the assignment of parentage and citizenship would be more helpful to mitigate the issues in this market.

 

B. OVERVIEW OF THE MARKET

Before examining potential options for a solution to the problems which sometimes occur in the context of international surrogacy arrangements, it may be helpful to examine the parameters of the international surrogacy market.[3]  It is undeniable that the commissioning of children through surrogacy – for money – represents a market.[4]  Any solution to problems posed by international surrogacy arrangements must take into consideration the underlying market forces at work in these arrangements.

The choice to reproduce is a fundamental human right,[5] and the desire to reproduce is a powerful force in this market.  Modern gestational surrogacy can be seen as a legitimate fertility treatment option for the infertile who wish to reproduce.  There are many ways in which people can choose to reproduce, including surrogacy.  Surrogacy is often conflated with adoption, but the markets for surrogacy and adoption are distinct.  People who choose to pursue surrogacy do not always do so as an alternative to adoption.

Surrogacy has existed in various forms throughout history.[6]  When fertility treatment advanced to separate the component parts of conception and gestation, market forces drove the growth of international surrogacy.[7]   The international surrogacy market exists for two reasons: barriers to domestic surrogacy or other assisted reproductive options (evidenced by the pursuit of surrogacy in the US by European intended parents), and cost savings (evidenced by the growth of surrogacy in lower cost nations).[8]  The overall value of the market is unknown, but a report in 2010 estimated that the value of the surrogacy industry in India alone would reach $2.3 billion by 2012.[9]  In order to maximize profits, international surrogacy brokers will operate in the countries with the lowest regulatory restrictions.[10]  Price is not everything in this market, however, as the intended parents will have their own personal criteria for deciding in which country to pursue surrogacy.[11]

Comparisons between the surrogacy market and the adoption market are frequent, but adoption and surrogacy are not “so similar that analysis of one can suggest solutions for the other” as suggested by one scholar.[12]  Nor are adoption and surrogacy interchangeable substitutes for all prospective parents – persons seeking parenthood do not always move smoothly and seamlessly between the two options.[13]   Adoption affords the adoptive parents the legal right to "parent" someone else's child over whom they would otherwise not possess legal authority; surrogacy affords the intended parents their sole opportunity to "reproduce," thereby creating their own child using, in the vast majority of cases, at least some of their own genetic material.  "Parenting" and "reproducing" are two distinct and inherently different processes.  Some intended parents will accept solutions to their infertility through either option, but most will be firmly committed to only one or the other.  The similarity between surrogacy and adoption rests solely in the fact that a woman other than one of the intended parents gestates the child.  Any similarity quickly ends there. 

Adoption is a process to transfer parental rights and responsibilities from one or more parties to another party or parties.  In adoption, the state responsibility toward the existing child is paramount, particularly where the child is in state custody. 

Surrogacy, on the other hand, is a therapeutic option for the infertile, specifically those for whom being pregnant is physically impossible or medically contra-indicated.  Surrogacy is a reproductive process where a child is created directly as a result of the actions of the intended parents.  Of course, modern surrogacy[14] is achieved through medical intervention. 

It is also important to remember that adoption is a universally accepted mechanism to deal with the issue of raising children who (for any number of reasons) have no legal or de facto parents, while commercial surrogacy remains a sometimes controversial process that is permitted in certain jurisdictions and banned - or rising to the level of a criminal offense - in others.[15]

Certainly, adoption and surrogacy may be seen as alternate processes to achieve parenthood.  However, surrogacy may be pursued as a logical extension of fertility treatment that may start when a heterosexual couple fails to conceive “naturally” – beyond achieving parenthood, surrogacy achieves reproduction.  Likewise, the “socially infertile” (such as a homosexual male couple) may have no realistic choice but to pursue surrogacy (including reproduction for one or both of the partners) in order to have children.  The surrogacy market and the adoption market must therefore be seen as separate, overlapping markets for the simple reason that prospective parents have certain barriers and choices in how to achieve parenthood. 

Market-based mechanisms have allowed international surrogacy to operate efficiently, with the result that this reproductive option can often happen as quickly and as cost effectively as humanly possible.  For intended parents who have often waited many years to fulfill the lifelong dream of having children, the availability of surrogacy as a choice is extremely beneficial.   It is not unusual for there to be extraordinary delays in being able to adopt a child internationally.  In addition to the delays in meeting the eligibility processes set out by adoption authorities (including the Central Authority in the adoptive parents’ country), once approved to adopt from the overseas country, delays of three to five years are not uncommon, and increasing.[16]  In Australia, for example, delays have been described as “glacial” and have been up to 8 years from beginning to end.[17]  If an adoption-based model of regulation were extended to international surrogacy, the effect on the intended parents’ right to reproduce would be disastrous.  Consider, as an example, a married couple where the woman has just had a hysterectomy.  This couple may choose to pursue surrogacy to have a child, but will need to move quickly in order to use the woman's eggs in the process.  A lengthy application and vetting process would prevent the couple from having a child genetically related to both of them.

Market forces are central to the consideration of international regulatory schemes for international surrogacy arrangements.  While the market is price-sensitive, with the concomitant shift to lower-cost areas, it is not completely elastic.  The desire to reproduce and the timing issues inherent in human reproduction are powerful influences in the decision-making of the intended parents.  Significant barriers to international surrogacy arrangements will necessarily force some market participants to other means of achieving parenthood, with perhaps more risk and less legitimacy.  If we lose sight of these market forces that underlie international surrogacy, attempts to regulate this market may lead to unwanted consequences that defeat the purposes of regulation and shift the issues elsewhere. 

 

C. IS SURROGACY THE REAL ISSUE?

The real issue with surrogacy arrangements, and with ART in general, is that they challenge societal notions of identity and the family structure in relation to the public and private spheres.[18]  This challenge creates the false notion that international surrogacy arrangements themselves are the problem, rather than the inconsistent manner in which nations assign parentage and nationality.  When the problem is viewed as inherent to international surrogacy arrangements, inappropriate conclusions about how to mitigate the negative effects of the market may result.

In August, 2011, Dr. Katarina Trimmings and Professor Paul Beaumont held a workshop to discuss legal perspectives on international surrogacy arrangements.  Trimmings and Beaumont proffered a position paper for a Convention on International Surrogacy Arrangements entitled: “International Surrogacy Arrangements: an Urgent Need for Regulation at the International Level”[19].  The Trimmings/Beaumont article gives a framework for a regulatory scheme for international surrogacy arrangements.  While the article authored by Trimmings and Beaumont is not an official proposal by the Hague, it represents a strong viewpoint that has gained the attention of many in the international surrogacy and ART communities.  This ABA position paper began as a reaction to the framework proffered by Dr. Trimmings and Prof.  Beaumont, and therefore contains many references to it.  For the purposes of simplicity, the Trimmings/Beaumont article and framework will be referred to in this document as the “Trimmings/Beaumont Model.”

The Trimmings/Beaumont Model correctly states that “highly complex legal problems arise from international surrogacy arrangements.  Among these problems, the most prevalent are the question of legal parenthood and the nationality of the child.”[20]  There are many examples of international surrogacy arrangements that have resulted in “stateless” children.[21]  These situations are the result of the conflicting legal regimes for determining parentage and citizenship - these are not situations where the intended parents and the surrogate contest the parentage of the child.   Avoiding these situations is a key objective of the Trimmings/Beaumont Model.[22]  Another desired effect of the Trimmings/Beaumont Model is to reduce the potential for human trafficking and exploitation. [23]

It is crucial to understand that the problems of “stateless” children that the Trimmings/Beaumont Model sets out to solve are essentially disputes between States - not between private citizens.  The real problem is that there are potentially conflicting legal regimes for determining parentage and citizenship among the nations involved in an international surrogacy arrangement.  These are not typically situations where the intended parents and the surrogate contest the parentage of the child.  Rather, the children are deemed “stateless” precisely when the intended parents attempt to take the children back to their home country pursuant to their agreement with the gestational carrier.  The direct conflict between the private contract between the parties and the national laws of their respective home countries creates the issue of “statelessness.”

The question is whether an international regulatory scheme specific to surrogacy will sufficiently address such problems.  “Even if all means of artificial reproduction were outlawed..., courts will still be called upon to decide who the lawful parents really are and who...is obligated to provide maintenance and support for the child.  These cases will not go away.”[24]  International surrogacy arrangements bring issues with conflicting national laws to the fore; regulation of international surrogacy as a proxy for addressing these conflict of law issues could lead to an exacerbation of the problems it seeks to solve.

In fact, the legal complexity surrounding international surrogacy arrangements may actually be helpful in the absence of a broader regulatory scheme.  Because of the legal pitfalls involved, the intended parents who pursue international surrogacy arrangements must do so with extreme care and planning.  The daunting complexities and potentially disastrous pitfalls serve as a deterrent to intended parents and as an incentive for legal practitioners to exercise a high degree of caution in these arrangements.[25]  In contrast, those intended parents who choose to pursue international surrogacy without regard to the legal complexities will also likely not be dissuaded by a new Convention.  This is the fundamental challenge facing regulation of international surrogacy:  some individuals will pursue international surrogacy without regard to law or Convention.  Surrogacy-specific regulation will therefore be ineffective to resolve the difficult problems posed by these cases.

It is not that there is no existing regulation for international surrogacy; rather, the issue is that each state manages the legal infrastructure underpinning these arrangements differently.  It is precisely this legal infrastructure that structures the arrangements.[26]  The problem is that the legal infrastructure in one country may not be compatible with that in another country.  What is needed, therefore, is a framework of cooperation to resolve issues as they arise from incompatible laws.  In fact, the notable cases where the legal complexities were improperly navigated forced nations to work together to solve the problems created by the conflicts of law.[27] 

The danger with a comprehensive regulatory scheme focused on international surrogacy is that it will be too restrictive, pushing legitimate participants out of the market and into the ‘grey’ or ‘black’ market.[28]  An example of the effect of over-regulation can be seen in Italy.  The heavy regulation of assisted reproductive technology, including surrogacy, has contributed to the growth of international solutions for Italian citizens.[29]   Faced with laws prohibiting domestic surrogacy, Italian intended parents must avail themselves of surrogacy in the international market if they choose to pursue this reproductive option.  Similarly, if a new Convention were to be too restrictive, some intended parents in Convention nations might choose to pursue surrogacy in non-Convention nations or in less legitimate markets.

The Trimmings/Beaumont Model suggests that an international regulatory scheme would “promote the exchange of information...reduce ‘limping’ or unrecognized surrogacy arrangements...[and] help to combat trafficking in women and children.”[30] While the exchange of information would undoubtedly improve, the other two effects are not so certain.  Specifically, increased regulation will result in the exclusion of people from the market.  Some of these people will seek surrogacy outside of the regulatory scheme – in the ‘grey’ and ‘black’ markets.  As regulation pushes people out of the market, the risk of trafficking and exploitation in the grey and black markets will increase.

 

D. CONSIDERATION OF THE TRIMMINGS/BEAUMONT MODEL

To the extent that efforts continue to define an international regulatory scheme focused on surrogacy arrangements, the framework proposed by the Trimmings/Beaumont Model warrants closer examination.  This discussion of the Trimmings/Beaumont Model is not meant to give the model more importance, but rather to discuss the key points of the model because these are ideas that appear regularly in the discussion of ways to regulate the international surrogacy market.

The Trimmings/Beaumont Model contains numerous recommendations for a regulatory scheme regarding international surrogacy arrangements.  Significantly, it describes a flexible framework in which countries maintain an open dialogue regarding issues surrounding international surrogacy.  The approach would leave a great deal of autonomy to individual countries to apply the framework with the context of their own laws, or to negotiate bilateral agreements with other countries.  This is a sensible starting point, given that every country will have its own body of law, particularly family law, where any changes would have far-reaching effects throughout their societies.  Great care must be taken to respect the public policies of every county participating in such a regulatory scheme.  The most important aspect of the legislative approach proposed by the Trimmings/Beaumont Model is a recognition that international surrogacy arrangements exist, and that nations need to cooperate when conflicts of law surrounding these arrangements arise.

Despite its well-placed focus on flexibility and cooperation, the Trimmings/Beaumont Model has two major flaws.  First, the focus on regulating the international surrogacy market itself is misplaced.  The legal issues that arise in international surrogacy are conflict of law and comity problems that can arise in non-surrogacy contexts and are therefore more effectively addressed outside the context of surrogacy.  Second, to the extent that international surrogacy is to be regulated, using international adoption as a template for such regulation is misguided, and leads to several inappropriate proposals for regulatory solutions.  Ultimately, the indirect abuses (such as human trafficking and exploitation) that the Trimmings/Beaumont Model proposes to address could instead be exacerbated if such regulation were implemented.

 Any Convention on International Surrogacy should be developed with an eye to navigating the conflict of laws and comity problems in international surrogacy arrangements.  The framework for regulating the international surrogacy market proposed by the Trimmings/Beaumont Model contains both valuable and problematic provisions and overlooks other useful provisions.  As a starting point, the Trimmings/Beaumont Model looks to the regulatory scheme in the 1993 Adoption Convention.  This foundation for a Surrogacy Convention misconceives the market and reinforces unhelpful biases against international surrogacy.

 

1. The 1993 Adoption Convention is an inappropriate model for a Surrogacy Convention

The Hague Conference on Private International Law has already recognized that the 1993 Adoption Convention is not appropriate as a model for a convention on international surrogacy.[31]  Nevertheless, the Trimmings/Beaumont Model suggests the Adoption Convention can be a template for a Convention on surrogacy.  This suggestion is based on two key elements of the Adoption Convention: its political success and its flexible approach.

However, underlying the proposal that the Adoption Convention be used as a template for a Surrogacy Convention is the mistaken idea that adoption and surrogacy are more alike than not.  Even as it recognizes that there are fundamental differences between surrogacy and adoption, the Trimmings/Beaumont Model nevertheless conflates the two. 

 

2. Helpful provisions in the Trimmings/Beaumont Model

The strength of the Trimmings/Beaumont Model is the recognition of the existence and the effect of surrogacy arrangements and the recommendation that nations uphold the enforceability of surrogacy arrangements even if the arrangements are not made pursuant to the local law.[32]  Agreement among nations to recognize the citizenship and parentage decisions made by other nations pursuant to the principle of comity would go a long way to solving the majority of issues with international surrogacy in particular and ARTs in general.  This is, however, perhaps the most politically sensitive recommendation; it implicates the internal law and sovereignty of nations in terms of their determination of who is a citizen and how families are structured in relation to the society.  In fact,  the questions of local family and immigration law are the controlling factors at the very core of the issues we see in international surrogacy arrangements.

The Trimmings/Beaumont Model suggests that the “details of financial accountability of accredited bodies should be left to domestic regulation.”[33]  This is appropriate, as the service of navigating the legal and medical complexities is relative to many factors.  Certainly, the differing factual situations and legal challenges of every surrogacy arrangement render a mandated fee structure unrealistic.

 

3. Provisions that should be considered for a Surrogacy Convention

Several important provisions are not included in the Trimmings/Beaumont Model, partly from the reliance on the Adoption Convention as a template.  As adoption and surrogacy are not identical markets, provisions specific to the surrogacy market should be considered.

 

(a) Intent-based parentage analysis

The intent-based approach to parentage relies on the concept that “but for” the actions of the intended parents, the child born through surrogacy would not exist.[34]  This theory, while not universally accepted, is often cited or used as a factor in other forms of parentage analysis.  Intent plays a significant role in the expectations that each party in a surrogacy arrangement has from the outset of the process and should be expressed in any contractual instruments involved.  Even without reducing surrogacy to the contractual sphere, however, the examination of the intention of all of the parties is critical to the analysis of legal issues that arise.  The doctrine of intent provides a sound legal basis for recognizing those whose actions brought about the child as the legal parents of the child born through surrogacy.[35]

As further support for including the doctrine of intent, the Trimmings/Beaumont Model suggests that this passage from the Adoption Convention be followed: “the policy of Contracting States regarding the nationality of the child should be guided by the overriding importance of avoiding a situation in which an adopted child is stateless.”[36]  When applied to surrogacy, the logical result is citizenship for the child based on the country of citizenship or habitual residence that all parties expected for the child.  This appropriate resolution of the citizenship problem mirrors the intent-based parentage model.

Finally, it is important to remember the distinction between adoption and surrogacy when considering the doctrine of intent.  Surrogacy is a process through which a child is conceived, gestated, and born based on the intended parents’ desire to procreate.  The collective intent of both the parent(s) and the surrogate is established and documented in advance of any medical procedure or actual gestation.  It is the actions of the intended parents that set this process in motion.  If the intended parents never chose to reproduce, the surrogate would never get pregnant and the child born through surrogacy would not exist.  Thus, the doctrine of intent is essential to navigate issues that arise in the process.

 

(b) Reproductive experience of the gestational carrier

The Trimmings/Beaumont Model leaves out mention - other than in a footnote - of the reproductive experience of the gestational carrier.  This may be an area for further consideration in an international agreement.  Specifically, only those women who have previously given birth should be permitted to serve as a gestational carrier for others.  This requirement would serve a twofold purpose.  First, it enhances the stability of the surrogacy arrangement by affording the woman serving as a gestational carrier the ability to enter into the arrangement from a more fully informed perspective.  From the intended parent perspective, it gives a level of comfort that the woman can carry a pregnancy successfully to term.  Second, the experience requirement helps to alleviate concerns of at least one type of exploitation – that of reproductive substitution.[37]   Particularly where the carrier has children of her own, the issue of allowing the “advantaged” intended parents to reproduce while the “disadvantaged” surrogate cannot becomes less severe.  This provision may have been left out of the Trimmings/Beaumont Model out of deference to local regulation or out of practical concerns for its unenforceability, but it should be considered as a core provision for the protection of all parties involved.

 

4. Provisions that should be reconsidered

The Trimmings/Beaumont Model proposes a Convention based on two important legal principles: the “best interests of the child,” and a mandatory genetic connection between the child born of international surrogacy and one or more of the intended parents.[38]  While these are important principles, they are overly exclusionary as central principles.  Including the doctrine of intent would help to mitigate the flaws in the doctrine of best interests as applied to surrogacy.  Eliminating the requirement for a genetic link removes not only a barrier to the market, but a chilling precedent that could have disastrous impacts beyond the surrogacy market. 

 

Further, the Trimmings/Beaumont Model proposes an evaluation of the parental fitness of intended parents.  This idea is not only misguided, but contrary to the right to reproduce as recognized in the US and in many other nations.

Finally, other proposals that increase cost and administrative burdens or which decrease individual choice in the process should be reconsidered.  These well-intentioned proposals may be redundant with other national or international procedures, or may actually serve to defeat the purposes of the Trimmings/Beaumont Model.

 

(a) The “Best Interests” doctrine is not the best doctrine for surrogacy

The “best interests of the child” doctrine is inadequate to deal with the complexities of surrogacy, particularly in the international context.  In surrogacy, the child is a newborn – there is no basis from his or her experience to attribute a “best interest”.  Therefore, a court will necessarily need to determine “best interests” based on the characteristics of all of the parties involved – raising issues of socio-economic status, class, race, and culture along the way.  When all parties agree on the expectations for parentage and citizenship of the child in advance, the “best interests” doctrine is unnecessary.

 In the case of Baby M, a contested surrogacy, the best interests of the child was presumably the basis on which custody was determined.[39]  However, the “best interests” evaluation of Baby M took into account the father’s economic status and the actions of the surrogate during the custody proceedings.[40]  Ultimately, the analysis has little to do with the infant’s “best interests” and more to do with the societal conceptions of the parents’ fitness.  In the international context, the question of “best interests” becomes even more complicated, as it inevitably will weigh the relative wealth of the parties involved, the ethnic background of the child, and the various societies in which the parties live.  The analysis could quickly become fraught with cross-cultural judgment. 

What we do know for any infant—even one not yet born—is that its best interests require certainty of parentage from the moment of birth, as well as not being left stateless.  Thus, any consideration of the best interests of a child born via surrogacy must come at this issue from the viewpoint of granting the child legal certainty on these two issues from the moment of birth (if not before).

 

(b) Biological Connection

This proposed requirement is inappropriate and violative of the privacy of intended parents.  It could also lead to disastrous results for the practice of fertility treatment.  The Trimmings/Beaumont Model says: “there is no need to create more children as there are millions of children around the world who are in need of adoption, waiting for a loving home. The Convention ... must give a clear message that the proper route to obtaining a genetically non-related child is through adoption.”[41]This perspective, when removed from the context of surrogacy, would prevent a married couple from using donated gametes (eggs and sperm) to conceive and carry a child without the service of a gestational carrier.  The logical extension of this perspective is that all assisted reproductive technology (“ART”) procedures involving donor gametes should be rationed according to the supply of adoptive children; that those who are unable to have children “naturally” must forego their reproductive choice until all available adoptive children are placed.  Even worse, this requirement could further suggest that all fertility treatment – and even “natural” reproduction – could be curtailed in order to address the needs of adoptive children.

More practically, imposing a mandatory genetic link means that necessarily some intended parents will be denied the dream of parenthood. It is current practice that intended parents seek a child who is their genetic offspring.  However, the journey for intended parents seeking surrogacy is often the journey of last resort. Sometimes, due to the cruel tricks of biology and reproduction, intended parents may not be able to have a genetic connection with their child. For example, a married couple may try fertility treatment and IVF for several years with no success.  Upon further medical evaluation, they may find that the woman is unable to carry a child safely to term, and that the man's sperm is not of sufficient quality to conceive.  By this time, the woman may have reached an age where her eggs are also not of sufficient quality to conceive.  This couple will necessarily need to rely on a surrogate, an egg donor and a sperm donor to be able to achieve their dream of becoming parents.  Another couple may discover that they both are carriers of a gene for a condition that would be incompatible with any of their genetic child’s ability to survive.  Another couple who cannot use their own gametes to conceive may turn to their respective siblings for genetic material.  To require a genetic link between these hypothetical intended parents and their children born through surrogacy would deny these individuals the fundamental right to reproduce and would interfere with their private medical decisions.  In addition, this requirement also precludes the use of donor embryos in international surrogacy arrangements, eliminating a viable use of this valuable resource by wiling individuals.

A proposal for a mandatory biological connection between the intended parents and children born through surrogacy comes from the misguided conflation of the adoption and surrogacy markets.  It is an attempt to address the problems seen in one market (adoption) with a manipulation of the regulatory scheme in another market (surrogacy).  Such a proposal is overbroad, and leads to undesirable conclusions about the regulation of both markets.  It also flies in the face of the doctrine of intent since the intent of the intended parent(s) and surrogate remains the same even if the embryo formed for transfer and gestation does not contain the genetic material of either of the intended parents. 

 

 (c) Evaluation of parental fitness

As part of the ‘best interests of the child’ analysis, the Trimmings/Beaumont Model would have each state be responsible for the evaluation of intended parents’ fitness to create a child.[42]  This is again a conflation of the issues of adoption (transferring legal responsibility over another person’s child after birth) and surrogacy (establishing legal authority over one’s own child from the moment of birth).  More importantly, however, is that a duty to evaluate parental fitness in intended parents is contrary to the human right to reproduce.  Parents have the exclusive right to determine freely and responsibly the number and spacing of their children.”[43] If we are to judge the parental fitness of those who would create a child through surrogacy, then there is no logical distinction to be made with judging the parental fitness of those who would pursue parenthood through any ART method.  From there, it is not a difficult logical leap to require an evaluation of parental fitness for any parent who would create a child through any means – including “natural” reproduction.

Supporters of the parental fitness requirement often raise the specter of individuals creating a child through surrogacy for the express purpose of exploiting the child in some way, seemingly ignoring the reality that children born “naturally” are exploited with alarming regularity today.  It is no more likely that someone will create a child through surrogacy for the express purpose of exploitation than via any other means.  In fact, it seems less likely; if one is engaged in commodification of children to such an extreme, there are far more cost-effective ways of procuring them.

It is most disconcerting that an evaluation of parental fitness may be used as an excuse by countries to deny same sex couples or single intended parents the ability to reproduce through surrogacy.  It may also be used as an invasive process of investigating a couple’s sex life, finances, criminal history, and medical status.[44]  A notorious example of an assessment of intended adoptive parents being deemed ‘unsuitable’ to adopt were actor Hugh Jackman and his wife Deborra-Lee Furness, who, following enormous difficulties in seeking to adopt in their home state of New South Wales, gave up and instead adopted their children in the United States.[45]

A more productive recommendation would be some form of social counseling for the intended parents focused on how they will explain the child’s origins to him or her.  Also, a discussion of the various risks and outcomes that may be encountered throughout the process is important.  Through this introspective exercise, the intended parents can determine if international surrogacy is the best option for them, or if another process to achieve parenthood is more appropriate for their circumstance.

 

 

 

(d) “Habitual residence” as determinative factor

The Trimmings/Beaumont Model proposes a Convention where the concept of “habitual residence” is made uniform across member nations.[46]  This proposition makes conceptual sense, and applies beyond issues of surrogacy.  Likewise, the provision that the child be presumed a citizen of the nation of the intended parents’ habitual residence could help resolve the citizenship and immigration issues that arise.   However, there are often practical difficulties when the intended parents are citizens of one country, but resident in another, and they undertake surrogacy in a third.  For these intended parents and their child, sorting out the residency and nationality issues cannot be easily solved by relying on a simple “habitual residence” construct.  In order to determine the nationality and residency status of a child born through surrogacy, a more effective (and efficient) means would be to indulge in a legal fiction that a surrogate is not involved in the birth of the child; a legal fiction that the child was born to one of the intended parents.  With this approach, nationality and residency are determined as simply as they are for a “natural” born child.  The legal fiction approach would be consistent with the heart of the arrangement: that the intended parents are in fact the parents of the child.  It would also be consistent with the doctrine of intent.

 

(e) Administrative oversight

The Trimmings/Beaumont Model proposes that Convention nations create a regulatory agency to approve international surrogacy arrangements (and, presumably domestic ones, as well) and to monitor compliance.[47]  While this solution may work for some nations, others may prefer to rely on alternate institutions for regulation.  For instance, medical standards of care and professional ethics for lawyers are critical elements of surrogacy arrangements, and regulation of these can be effectively achieved without a specific governmental agency.  These non-governmental institutions form part of the “market infrastructure” that regulates surrogacy arrangements today.[48]  Thus, Convention nations should be able to choose how they structure the regulation in their society.

Central regulatory agencies specific to surrogacy would add unnecessary cost to the system.  A new layer of administration could burden taxpayers and participants in the market.  Further, such a layer of administration focused on international surrogacy risks being redundant and incomplete.  Additional administrative oversight risks changing a relatively rapid process (surrogacy) to one of glacial pace, with attendant increased costs and frustration for the intended parents.  There is the risk that by creating a new bureaucracy, the new bureaucracy becomes self-justifying and imposes unnecessary requirements that unduly burden the process.    Governmental intervention of this sort in “natural” reproduction is offensive to modern notions of autonomy, privacy, and the freedom to reproduce; likewise, such intervention for one reproductive choice must be very carefully considered.  To the extent that the majority of the problems encountered by international surrogacy are really issues with existing legal and social structures, a central authority that seeks to resolve these issues only in the context of surrogacy misses the mark.  Worse, overregulation could exacerbate the risks of exploitation.  As the cost of the process increases, some market participants will seek less costly (and perhaps less legal) alternatives to parenthood.

 

 

(f)Licensing requirement

The Trimmings/Beaumont Model proposes that all surrogacy arrangements not made with licensed agencies be outlawed.[49]  While understandable, this proposal may be overbroad.  Is there to be a license to practice international surrogacy?  Or, will state permission to practice law or medicine suffice?  What if the participants piece together the necessary elements of a surrogacy program with a relative without the intervention of services of an agency?  If an agency is required, does this add to the already prohibitive cost of the surrogacy process?  This last hypothetical raises an important point : regardless of the form of any international instrument, surrogacy will continue outside the boundaries of the "market."  The individuals - and children - in the non-market arrangements deserve just as much protection as those in the market.

Currently, participants in the international surrogacy market take enormous risk if they do not work with a competent practitioner.  The inherent uncertainty in the current market gives people pause before they enter the market.  In this sense, the complexity of the market is self-regulating, giving participants a strong incentive to act with caution and care.  Using a competent broker is part of the calculation of the intended parents; those who choose not to work with one do so at their own peril.

This proposal also raises an important issue for any regulatory framework: the consequences of regulatory violations.   If a subset of surrogacy arrangements is outlawed, then the logical recourse when such arrangements occur is to punish the parties involved, including the intended parents.  A severe punishment for intended parents would be removal of the child.  Short of removal of the child, fines or criminal sentences could be imagined for the intended parents.  Whatever penalty is applied, it would ultimately serve to punish the people that the regulation purports to protect: the children born of surrogacy.

 In addition, the requirement that all economic activity pass through licensed agencies necessarily limits the availability of surrogacy agency services.  In turn, supply of these services would be restricted, resulting in upward pressure on price.  Such a result would increase risk of exploitation of the intended parents and surrogates alike as individuals move to the grey or black markets to seek lower costs and less oversight.

 

(g) Compensation for the gestational carrier and gamete donors

Compensation for the gestational carrier is important, as it allows the market to function by balancing the rights of the carrier with the responsibilities of the intended parent(s).  However, caps on compensation may increase the possibility of exploitation.  “Debate centers around two distinct issues: commercialization, or the fact that a surrogate is paid for her services, and exploitation, which is the idea that surrogates are paid too little for their services.”[50]  International surrogacy arrangements heighten the concern of exploitation as a main factor behind the existence of the international surrogacy market is price.  On the one hand, lower costs for surrogacy arrangements give more people access to this reproductive option.  On the other hand, higher compensation for gestational services may be seen as potential coercion for women in underdeveloped countries to become surrogates.  Achieving a balance is a challenge, one best left to local regulatory expertise.

While the Trimmings/Beaumont Model allows flexibility for nations to regulate compensation models, it relies on the idea that a maximum limit to compensation should be part of the regulation.[51]  The idea that overly coercive amounts of money will be offered to women in underdeveloped countries may be somewhat exaggerated.  The market for international surrogacy is highly price-sensitive.[52]  The surrogacy market has expanded to lower-cost areas precisely because those areas are lower-cost.  As prices rise in a particular geographic market, the attractiveness of that market diminishes. 

  For gamete donors, the concerns may similarly be overstated.  In the US, the egg donation market is rife with myths of eggs regularly sold for six-figure amounts.   The reality is that the vast majority of egg donors in the US receive between five and ten thousand dollars per donation, conforming to the ASRM standards for egg donor compensation.[53]  Here, again, the concerns of coercive exploitation of women through excessive sums of money are exaggerated. 

Rather than income-based caps for compensation, a flexible approach to compensation is more appropriate.  Nations and localities should be able to monitor and manage the delicate balance between market demand and market exploitation without conforming to a global formula, as the management of this balance will be based on each society’s notion of fairness in this market.  Nevertheless, care should be taken to avoid additional pressure for intended parents to move from the legitimate market to a less desirable means of achieving parenthood.

 

(h) Access to Birth Records by Children Born Through Surrogacy

The Trimmings/Beaumont Model rightly distinguishes the process of gestational surrogacy from adoption in the area of access to birth records.[54]  While international law may require an adoptive child to be able to access information of her birth parents, the applicability of this concept to children born of gestational surrogacy is more problematic, particularly when donor gametes are not involved.   Varying legal conceptions of the privacy of the family and medical information may warrant greater flexibility on this point.  Ideally, each individual should have a clear view of his or her origins.  However, children of “natural” birth are afforded no such guarantee, as parents are not obligated to disclose to their children any irregularities with their conception.  Children born through surrogacy may likewise need to rely on the disclosures or approvals of their parents for complete information, just as are children born through fertility treatment (including use of donor gametes) without surrogacy.

 

E. Conclusion

Regulation of international surrogacy as a proxy for other issues in the international private law sphere will have unintended consequences.  It will almost certainly drive some people out of the market and into less desirable means of achieving parenthood.  Further, regulation of the narrow issue of surrogacy will not address the structural challenges with international parentage decisions generally.

In the end, the practical problems with international surrogacy are grounded in conflicts of laws and comity issues surrounding parentage, family structure, nationality, and immigration.  Any Surrogacy Convention should be limited to a framework for open dialogue between nations about the reconciliation of these conflicts, particularly when the issues are not contested by the parties involved..  In reality, the conflicts of family and immigration law are the issue, not surrogacy.

If we fear coercion and exploitation in the international surrogacy market, then each nation should consider developing an approach to protect all parties who participate in such arrangements.  The definitions of ‘coercion’ and ‘exploitation’ may vary from society to society, and so each individual society is best equipped to define ways to protect its citizens against abuses.  At the international level, a framework of cooperation to resolve conflicts of these society-dependent notions of coercion, exploitation, family, and citizenship may suffice to resolve the tensions in this market.

 



[1]   Hague Conference on Private International Law, Projects Concerning The Children’s Conventions,
Maintenance, Adults, Cohabitation, Status Of Children And International Family Relocation –
Planning For 2012-2013 (Preliminary Document No 6 of March 2012 for the attention
of the Council of April 2012 on General Affairs and Policy of the Conference), p. 17 (Mar. 2012), available at: http://www.hcch.net/upload/wop/gap2012pd06_en.pdf.
[2]   Consider a scenario where a US citizen woman living in the UK with her British husband.  If she carries a child conceived with her husband’s sperm and a donor egg from another British citizen, US immigration law will not consider the resulting child to be a US citizen should the family decide to relocate to the US.
[3]   “Market” and related terms are used here deliberately, despite the risk that discussing surrogacy in market terms may conjure up images of human commodification, a frequent criticism of modern surrogacy arrangements.  This discussion addresses the market forces that react to regulation, and therefore relies on market terms for clarity.
[4]   Kimberly D. Krawiec, Price and Pretense in the Baby Market, in Baby Markets, 41 (Michele Bratcher Goodwin, ed., Cambridge University Press 2010).
[5]   Declaration on Social Progress and Development, G.A. Res. 2542 (XXIV), ¶ 4, (11 Dec., 1969).  Available at: http://www2.ohchr.org/english/law/pdf/progress.pdf; Meyer v. Nebraska, 262 U.S. 390 (1923)(finding the 14th Amendment includes right to “bring up children”); Skinner v. Oklahoma, 316 U.S. 535  (1942)(declaring compulsory sterilization a violation of fundamental right to procreate).
[6]  We can trace certain practices of surrogacy back into biblical times.  Genesis 16 and 30 both tell stories of women bearing children for others.
[7]   Deborah L. Spar, The Baby Business, 85-88 (Harvard Business School Press, 2006).
[8]   Richard F. Storrow, Quests for Conception: Fertility Tourists, Globalization and Feminist Legal Theory, 57 Hastings L.J. 295, 301 (2005).
[9] Jason Burke, India’s Surrogate Mothers Face New Rules to Restrict ‘Pot of Gold’, The Guardian (30 July 2010), http://www.guardian.co.uk/world/2010/jul/30/india-surrogate-mothers-law (last accessed 17 July 2012).
[10]             Angie Godwin McEwen, So You’re Having Another Woman’s Baby: Economics and Exploitation in Gestational Surrogacy, 32 Vand. J. of Transnat’l L., no. 1 (Jan. 1999).  See also Iris Lebowitz-Dori, Womb for Rent: The Future of International Trade in Surrogacy, 6 Minn. J. Global Trade 329, 334 (1997).
[11]             As an example, there remains a strong domestic market for surrogacy in the US despite the potential cost savings for intended parents to pursue surrogacy internationally.  Potential explanations for this include the desire of intended parents to participate more fully in the process, and the desire of intended parents to avoid legal complexity.  In addition, some intended parents may choose a higher-cost market for surrogacy over a lower-cost market in order to mitigate legal risk.
[12]             Iris Lebowitz-Dori, Womb for Rent: The Future of International Trade in Surrogacy, 6 Minnesota Journal of Global Trade 329, 338, (1997).
[13]             Kimberly D. Krawiec, Price and Pretense in the Baby Market, in Baby Markets, 44-45 (Michele Bratcher Goodwin, ed., Cambridge University Press 2010).
[14] Specifically, gestational surrogacy - where the woman who gives birth to the child has no genetic connection to the child.
[15]             Compare : Family Code, Ca Stat, Div 12, Part 7, §§ 7960-7962 (2012) (allowing surrogacy) and Embryonenschutzgesetz (ESchG) (The Embryo Protection Act), Dec 13, 1990, Federal Law Gazette, Part I, No. 69, issued in Bonn, 19th December 1990, page 2746 (Ger.) (with criminal penalties for creating a surrogate pregnancy).
[16]             Australian Institute of Health and Welfare, ADOPTIONS AUSTRALIA 2010-2011, p.5; accessed at www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=10737420773(last accessed on 17 July 2012).
[17]             Malcolm Farr, Deborra-Lee Furness' calls for adoption help that ministers never returned, news.com.au, (November 09, 2011 4:14AM), http://www.news.com.au/national-news/deborra-lee-furness-calls-for-adoption-help-that-ministers-never-returned/comments-e6frfkw9-1226190335342.
[18]             Susan Markes, Surrogate Motherhood and the Politics of Reproduction, 176, (University of California Press, 2007).
[19] Trimmings and Beaumont were awarded a grant of more than £112,000 by the Nuffield Foundation in July 2010.  The purpose of the grant was to study private international law aspects of international surrogacy arrangements, ways to regulate the international surrogacy market, and to prepare a document that could help shape a future Convention on international surrogacy.  Trimmings and Beaumont’s work is being done in cooperation with the Hague Conference on Private International Law.  See University of Aberdeen School of Law, International Surrogacy Arrangements: An Urgent Need for a Legal Regulation at the International Level, accessed at http://www.abdn.ac.uk/law/surrogacy/ (last accessed 17 July, 2012).
[20] Katarina Trimmings and Paul Beaumont, International Surrogacy Arrangements: an Urgent Need for Regulation at the International Level, 7 J. Private Int’l L. 627, 630, (2011).
[21] E.g., X & Y (Foreign Surrogacy) [2008] EWHC 3030 (U.K.)(where twin children were delivered by a Ukrainian gestational surrogate for British intended parents, and both states denied citizenship to the children while claiming that the children were citizens of the other state.)
[22] Trimmings and Beaumont, at 633.
[23] Id, at 636.
[24] Buzzanca v. Buzzanca, 61 Cal. App. 4th 1410 (1998).
[25] Kimberly D. Krawiec, Price and Pretense in the Baby Market, in Baby Markets, 48-49 (Michele Bratcher Goodwin, ed., Cambridge University Press 2010).
[26] For a discussion of the legal infrastructure that supports surrogacy arrangements, see John A. Robertson, Commerce and Regulation in the Assisted Reproduction Industry, in Baby Markets, 195-196 (Michele Bratcher Goodwin, ed., Cambridge University Press 2010).
[27] For example, the recent case where Germany and India disagreed about the citizenship status of twins born to an Indian surrogate for German intended parents was only resolved when the countries granted exceptions to the children.  A summary of the conclusion can be found at: http://articles.economictimes.indiatimes.com/2010-05-27/news/27577615_1_surrogate-twins-german-couple-inter-country-adoption (last accessed 29 July 2013). 
[28] Lee, Ruby L., New Trends in Global Outsourcing of Commercial Surrogacy: A Call for Regulation, Hastings Women's Law Journal, Vol. 20, p. 275, 285 (2009). (Attributing the increase of ‘reproduction tourists’ from certain countries to those countries’ heavy regulation of the fertility industry.)
[29] Richard F. Storrow, Quests for Conception: Fertility Tourists, Globalization and Feminist Legal Theory, 57 Hastings L.J. 295, 306-307 (2005).
[30] Trimmings and Beaumont, at 636.
[31] Hague Conference on Private International Law, Private International Law Issues Surrounding Status of Children, Including Issues Arising from International Surrogacy Arrangements ( Preliminary Document No 11 for the attention of the Council of April 2011 on General Affairs and Policy of the Conference), p. 21 (Mar. 2011), available at: http://www.hcch.net/upload/wop/genaff2011pd11e.pdf.
[32] Trimmings and Beaumont, at 645.
[33] Trimmings and Beaumont, at 644.
[34] Johnson v. Calvert, 5 Cal. 4th 84, 93(1993).
[35] Charles P. Kindregan, Jr. and Maureen McBrien, Assisted Reproductive Technology: A Lawyer’s guide to Emerging Law and Science, (A.B.A., 2nd ed., 2001).
[36] Trimmings and Beaumont, at 646.
[37] Reproductive substitution is the idea that the gestational carrier generally cannot have children of her own during the time that she is participating in the surrogacy process.  In effect, the surrogacy process shifts the benefit of the reproductive capacity of the gestational carrier to the intended parents.
[38] Trimmings and Beaumont, at 640.
[39] In re Matter of Baby M., 537 A.2d 1227, 1256 (N.J. 1988).
[40] Id., 1257-1259.
[41] Trimmings and Beaumont, at 641.
[42] Trimmings and Beaumont, at 642.
[43] Declaration on Social Progress and Development, G.A. Res. 2542 (XXIV), ¶ 4, (11 Dec., 1969).  Available at: http://www2.ohchr.org/english/law/pdf/progress.pdf.
[44] Lucie van den Berg, Victorian adoption process likened to criminal investigation, Herald Sun, (10 November 2011, 8:14 AM), http://www.heraldsun.com.au/news/victoria/victorian-adoption-process-likened-to-criminal-investigation/story-fn7x8me2-1226190850588 (last accessed 17 July 2012).
[45] Kirstin Murray, Celebrity campaign to reform adoption laws, Australian Broadcasting Corporation, (13 March, 2008), http://www.abc.net.au/7.30/content/2007/s2188906.htm (last accessed 17 July, 2012).
[46] Trimmings and Beaumont, at 639.
[47] Trimmings and Beaumont, at 641.
[48] John A. Robertson, Commerce and Regulation in the Assisted Reproduction Industry, in Baby Markets, 195-196 (Michele Bratcher Goodwin, ed., Cambridge University Press 2010).
[49] Trimmings and Beaumont, at 643.
[50] Angie Godwin McEwen, So You’re Having Another Woman’s Baby: Economics and Exploitation in Gestational Surrogacy, 32 Vand. J. of Transnat’l L., no. 1 (Jan. 1999).
[51] Trimmings and Beaumont, at 644.
[52] Deborah L. Spar, The Baby Business, 30 (Harvard Business School Press, 2006) (“In this market, therefore, price acts harshly as a constraint on demand.”).
[53] American Society for Reproductive Medicine, 88 Fertility and Sterility, No. 2, 305(Aug. 2007).
[54] Trimmings and Beaumont, at 646.

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