Global Surrogacy, Exploitation, Human Rights and International Private Law: A Pragmatic Stance and Policy Recommendations

Abstract

The number of global surrogacy arrangements increased exponentially over the last decade, and the rise in the practice has led to concerns over issues such as social justice, exploitation, and human rights abuses. Currently, there are no international regulations or guidelines regarding global surrogacy arrangements, and in some countries where the practice is prevalent, i.e., India, there is limited national regulation or oversight. Global surrogacy is a complex issue that includes questions related to morality, parentage, the natural mother–infant bond, and the complexities of inequalities in a globalized world that interface with a multi-million dollar industry. The purpose of the paper is to present global surrogacy dynamics written in a manner to help the reader understand this complex phenomenon, including a discussion of the associated problems and ethical dilemmas. The USA and India, two contrasting global surrogacy destination countries, are presented as cases, and some unique matters related to surrogacy in each country are emphasized to highlight the issues. Human rights instruments and international private law are discussed to frame global surrogacy regulation including the rights of the child and the rights of women. The analysis is concluded with pragmatic policy recommendations oriented to some of the practices necessary to regulate global surrogacy arrangements in a fair and consistent manner, while maintaining that ultimately the voices of all involved in global surrogacy contracts, and most especially the surrogates themselves, need to be included in further discussions of the issue.