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
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