International Commercial Surrogacy Arrangements: The Interests of the Child as a Concern of Both Human Rights and Private International Law

Abstract

For both private international law (PIL) and human rights lawyers alike, cross-border surrogacy raises numerous legal problems given the current lack of international legal standards and disparate regulation by states. This contribution aims to provide insight into the interconnectedness between PIL and human rights in this area. As cross-border surrogacy arrangements affect the human rights of all parties involved, in particular the child, states should ensure that an international PIL instrument is consistent with ethical and human rights standards. At the same time, PIL issues in cross-border surrogacy including the determination of applicable law with regard to the contract as well as the recognition of the child’s legal parentage abroad, require practical legal solutions. On the basis of an analysis of recent case law of the European Court of Human Rights, the authors contend that a feasible PIL regime could be devised. Yet its aims should be modest, considering the great divergence in regulatory and ethical approaches taken by states at present. For the time being, a PIL instrument should probably not go beyond providing mutual aid between states, while incorporating ‘classical’ PIL concepts such as ordre public and public policy. Ultimately, human rights law restricts regulatory ambitions of any PIL instrument with regard to cross-border surrogacy.