Human trafficking and surrogate motherhood: challenges

Abstract


 Owing to modern scientific advances prospective parents, among other opportunities, enjoy the opportunity, which has not been available before. It consists in giving birth to a child by using another woman’s reproductive capacity when the situation seems hardly improvable.
 The paper examines surrogate motherhood as one of the reproductive methods through the prism of human trafficking. It aims at studying and differentiating such legal phenomena as the sale of human beings and surrogate motherhood, which is provided primarily on a paid-for basis, whose consequences (transferring irrevocably a child from one person to another), are externally similar.
 The comparative legal and formal legal methods have been employed to provide a general description of international experience in regulating surrogate motherhood. Examples of absolutely opposite ways of pursuing state policy on the legalization of this type of reproductive methods in foreign countries are suggested: from a complete ban to legislative approval and even further simplification of the applying procedure.
 It has been proved that there is no connection between acknowledgement of the legality of this procedure and the geographical location of states, the level of their economic development, the specifics of the legal system, and the like. It has been stated that none of the countries can be considered a universal example of solving these issues.
 Based on the example of Ukrainian legislation, the author suggests distinguishing between the objective aspect of selling human beings and surrogate motherhood, which is provided, first of all, for a fee. It is emphasized that due to the peculiarities of reproductive technologies only a child should be the object of trade, not a person’s gametes, zygote, embryo or fetus. When a child is sold, in view of the objective aspect, the child is illegally transferred from one person to another. In legal surrogate motherhood agreements the object of the agreement concluded between the surrogate mother and the future parents is not the child, but the service related to embryo implantation, pregnancy and childbirth, id est, a long process.
 Based on criminal law, there have been modelled the peculiarities of surrogate motherhood and its assessment used in determining the signs of human trafficking largely depending on genetic relationship between a child and customers (potential parents), as well as a child and a surrogate mother.
 The mental element making the distinction between surrogacy and the trafficking of newborns is described. It is emphasized that qualifying as «trafficking in human beings» necessitates the proof of direct intent to unlawfully «transfer» a child, primarily in return for a fee.
 It has been concluded that the legal regulation of surrogacy requires further improvement and consolidation at the legislative level. Investigators and prosecutors should investigate all the circumstances that were associated with the surrogacy methods applied in order to establish whether child trafficking occurred in each specific case.