International Surrogacy Arrangements Research Articles

International Surrogacy and Stateless Children

This article examines statelessness resulting from international surrogacy arrangements by exploring whether there is protection afforded under international law and the overall consequences of statelessness for surrogate-born children. The aim of this contribution is to shed light on the statelessness problem in view of recent developments in the field. In particular, for an updated and holistic approach to surrogacy and statelessness, this contribution advocates for the United Nations Convention on the Rights of the Child 1989 (UNCRC) to be read in conjunction with the recently established Verona Principles. These Principles are specifically designed for international surrogacy, able to complement the existing UN protection, and it is argued that a combined reading of the UNCRC and the Verona Principles provides stronger protection of children’s rights. In addition, this contribution aspires to bridge the gap between legal and other consequences of statelessness, with the latter often overlooked in the context of surrogate-born children. To explore the above, this article first addresses the phenomenon of statelessness for children born through international surrogacy via an examination of conflicting laws and international surrogacy cases. The article then discusses how this state of affairs infringes the rights of the surrogate-born children, and in particular the right to acquire a nationality (Article 7 UNCRC). It is also submitted that, for surrogacy, Article 7 UNCRC should be read in conjunction with the recently established Verona Principles for a more holistic protection. Finally, this article examines the harmful effects that result from the surrogate-born children’s statelessness, advocating for a more comprehensive approach that goes beyond the strictly legal consequences of statelessness. Keywords: surrogacy; statelessness; UNCRC; nationality; citizenship; cross-border assisted reproduction.

Australian intended parents’ decision-making and characteristics and outcomes of surrogacy arrangements completed in Australia and overseas

Markets for international surrogacy often arise in jurisdictions with limited regulations regarding assisted reproductive technologies. In some countries, like Australia, regulated domestic surrogacy services are often sidestepped for international providers. This study describes how Australian intended parents decide where to pursue surrogacy and compares the characteristics and outcomes of arrangements completed within and outside of Australia. The findings show that, although intended parents preferred undergoing surrogacy in Australia, perceiving the process as too long and complicated was a common reason to pursue an international arrangement. Multiple embryo transfer, anonymous gamete donation, and a lack of counselling were common in international surrogacy arrangements. When compared to surrogacy arrangements completed in Australia, where single embryo transfer is mandatory for surrogacy cycles, the rates of multiple birth, preterm birth and neonatal intensive care in international surrogacy were higher. These findings raise concerns about the health and welfare of international surrogacy participants, particularly the surrogates and children. In lieu of any international instrument regulating surrogacy, improving access to surrogacy at a domestic level would reduce the number of people engaging with international arrangements and in turn, reduce the potential for harm.

Law as Anti-Kinship: The Colonial Present in Global Surrogacy

Law and regulation are often seen as the panacea for the ills of science and markets: regulation minimizes risks by setting out clear rules, calls out abuses when those rules are not obeyed, and disciplines actors, institutions, and states to behave according to collectively agreed upon principles. In this article I challenge this liberal narrative of regulation by looking at how cross-border surrogacy arrangements are currently debated in private international law. I first demonstrate that technosciences are intimately linked to regulatory and legal frameworks. Here, recombinant knowledge has led to new formations of legal parenthood while obscuring other forms of kinship in quite paradoxical ways. Second, the liberal story of law and regulation erodes the history and political economy in which law has come to represent itself as universal and moveable. I examine how a gendered, racialized, and (post)colonial context of global fertility chains is lost in the legal instruments designed to protect the people involved in international surrogacy arrangements, preferring instead neoliberal forms of kinship. Finally, the liberal story of law also embraces the story of individualism. I show the conflicts that arise when such individualist forms of law are transplanted to non-individualist contexts, both in non-Western and Western contexts. I argue that by subjecting non-liberal others (across the Global North-South divide) to bioethical frameworks that intervene in kinship ontologies, private international law runs the risk of prolonging the logic of colonial and imperial thinking.

What makes a Parent? Challenging the Importance of a Genetic Link for Legal Parenthood in International Surrogacy Arrangements

Abstract This article advocates for consistent application of the best interests of children in recognition of legal parenthood of children born out of international surrogacy arrangements (ISAs) and opposes its differential application to surrogate children who do not have a genetic link to their intending parents (IPs). Owing to the lack of European consensus and specialized legal instruments regulating recognition of legal parenthood in ISAs, the European Court of Human Rights (ECtHR/the Court) via interpretation of Article 8 obligates prohibitionist home states of IPs to recognize legal parenthood coming out of such international arrangements only in instances where there is genetic link with one or both IPs. This leaves surrogate children with no genetic link to their IPs with no benefits stemming out of recognition of legal parentage often leaving them parentless and stateless. This work challenges the necessity for such limitations through analysis of two ECtHR cases, the Mennesson v. France and the Paradiso and Campanelli v. Italy, where differential consideration of the best interests of children was based on presence or lack of genetic link respectively. It concludes that non-recognition of parenthood is a disproportionate measure to protect legitimate aims of prohibitionist home states and advocates for expansion of their implied positive obligations to protect the best interests of surrogate children with no genetic link to their IPs.

Surrogate Born Children’s Access to Information About Their Origins

Abstract This article considers the rights of surrogate born children to access information about their origins. Proposals for reform in the UK and Ireland are discussed, and it is argued that there needs to be a greater consideration of children’s rights law in this context. In particular, it is observed that restricting children’s access to identifying information until they are 18 years old must be reconsidered. There is a myriad of reasons for this, not least obligations under international human rights law, as well as evidence from research which demonstrates that children should be informed about their origins and birth story at a young age. The introduction of a minimum age limit under the age of 18 years, to access identifying information, as is evident in some jurisdictions, is considered. Children’s access to information in the context of international surrogacy arrangements is also discussed. It is concluded that legislators should seek to take a children’s rights approach, and facilitate children in accessing information about their origins during their childhood.

International Law Concerning ART

The article seeks to set out the current international legal landscape concerning international surrogacy arrangements and how domestic law and conventions might impact on international surrogacy arrangements.

International Surrogacy Arrangements - Perspectives on International Regulation

In January 1988 the Supreme Court of Canada struck down the country's archaic abortion law on the ground that it imposed arbitrary delays and unfair disparities in access to abortion across the country. Since then, the conservative government of Canada has made a few attempts to introduce a new abortion policy, but it did not get passed in the parliament because the revised bills failed to protect women's right to 'life, liberty, and security of the person' within the meaning of the Canadian Charter. Canada has been without an abortion law for over four years and there has been a wide range of provincial policies and confusion in the country. Despite the legal vacuum, Canadian women are not frenziedly having abortions. However, the militancy of the anti-abortion groups has steadily intensified with continued assault on a woman's right to make reproductive choices. Since no law, short of banning abortions altogether, is going to satisfy abortion opponents, the abortion battle will rage on in Canada.

Ending international surrogacy-induced statelessness: an international human rights law perspective

Statelessness among children born out of international surrogacy arrangements is a sad reality. Despite the availability of various international human rights law provisions guaranteeing nationality for newly born children, some states are reluctant to give nationality to the children of their citizens, who are born abroad through surrogacy arrangements. The article analyzes the root causes of statelessness among surrogate born children in the light of laws and regulations available in this realm, and concludes that countries have responsibility under international human rights regime to give nationality to children born out of international surrogacy arrangements. This obligation continues even when the state’s general public policy opposes surrogacy, and even when their jus sanguinis or jus soli norms would otherwise lead to a denial of nationality. The Article then introduces the possibility of discerning the content of these obligations not only from the major international agreements and conventions, but also from regional conventions. This method of analysis recognizes the non-negotiable nature of the human rights duties that states owe to children born out of international surrogacy arrangements while allowing some flexibility to individual states to realize these rights within their own individual and cultural understandings of nationality, parenthood, and the morality of surrogacy.

Aspectos transfronterizos de la gestación por sustitución

This article deals with the topic of substitue gestation and addresses some of the complex problems that arise from it, especially when the substitute gestation is a cross-border one. It approaches the diversity of the phenomenon and contextualizes it. Moreover, it analyzes some other issues of Private International Law of Parentage and then it focuses on the legal status of children who are born following international surrogacy arrangements vis-à-vis their intended parents. Finally, looking forward, the article highlights the need for an international instrument on cross-border surrogacy.

Overseas children: challenges in international surrogacy arrangements

Overseas children: challenges in international surrogacy arrangements

Comparative Analysis of ART in the EU: Cross-border Reproductive Medicine

The need for cross-border reproductive medicine exists for several reasons. Some are due to the fact that some states do not permit particular ART procedures; thus couples travel to the state where needed procedure is allowed (surrogate motherhood, embryo donation, posthumous fertilization). Other situations are due to the fact of who is entitled to ART procedures. In some states ART procedures are not allowed to same-sex couples or a single woman. The consequence of the cross-border reproductive medicine might be that the born child becomes parentless (“limping legal parentage”) and stateless. Since the best interest of the child is the paramount principle in contemporary family law, it is most important to find solutions for these situations. The most complicated issues are the consequences arising from international surrogacy arrangements. The Hague Conference on private international law is working on these issues trying to find the best solutions.

What's in a name? Variations in terminology of third-party reproduction

The terminology used to discuss third-party reproduction, as with other new biomedical processes, can ease or impede communication and even influence behaviour. In an effort to sensitize analysts and stakeholders to variations in terminology and to facilitate communication on issues arising from international surrogacy arrangements, this paper examines variations in terms used. We introduce some of the issues previously raised by scholars concerned with analysis of discourse related to third-party reproduction. We then survey the terms used in English-language discussions to denote specific actors, including ‘surrogates,’ ‘intended parents,’ gamete providers and children, as well as terms used to describe ‘surrogacy arrangements.’ We conclude with a discussion on navigating and negotiating the use of these various and value-laden terms.

News from the Hague Conference on Private International Law

This article highlights some of the recent notable developments at the Hague Conference on Private International Law. The Permanent Bureau of the Hague Conference on Private International Law is excited to report that after years of exploring various options to better meet the evolving needs of the Organisation, the office headquarters in The Hague relocated from the building located at Scheveningseweg 6 to space in the heart of the city’s International Zone and adjacent to the World Forum, at Churchillplein 6B. The move was made possible thanks to the generous support of the Netherlands Ministries of Foreign Affairs and Justice & Security; as well as the Municipality of The Hague. The Opening Ceremony took place on 3 September 2014 before ambassadors, other government officials, staff, family and friends of the Hague Conference. Throughout the past year, the Permanent Bureau has focused on the development of several possible new instruments, including finalisation of the Commentary for the Principles on the Choice of Law in International Contracts; as well as instruments related to the recognition and enforcement of foreign civil protection orders; voluntary agreements in cross-border family law disputes; private international law issues surrounding the status of children, including issues arising from international surrogacy arrangements; and further work related to the recognition and enforcement of foreign judgments (the “Judgments Project”).

Review Article: Human Rights and Private International Law: Regulating International Surrogacy

Surrogacy is not a new concept - indeed, early forms can be seen in the Babylonian Code of Hammurabi and in the Christian Bible. However, recent years have seen the rapid expansion of this practice, both in frequency and in geographical scope. Increasing numbers of individuals and couples are seeking the services of surrogate mothers, and in our progressively globalised world, they are looking across international borders to find the most advantageous jurisdiction in which to do so. The resulting international surrogacy arrangements have posed new legal and ethical dilemmas, which governments and scholars are only just starting to come to grips with.

Elements for regulating surrogacy arrangements with cross-border effects

Numerous cases of international surrogacy arrangements and their legal effects in different national legal frameworks have caused a need to weigh the possibility and necessity of regulating the issue on international level. The Hague Conference on Private International Law has been since 2011 involved in preliminary research activities of the issue, on the basis of which it will submit a final report in 2014 on the state of play and on the need to start drafting an international instrument. During the past three years two preliminary reports and four questionnaires have been submitted. Questionnaire 1 have been sent to the member states of the Conference and to other interested countries to collect data on crucial issues of surrogacy and its legal regulation in national legislations. Serbian law de lege lata prohibits surrogacy arrangements, but the 2011 Draft Civil Code introduces it to the domestic legal system as a tool of biomedically assisted fertilization. The present paper suggests that the regulation of surrogacy must also include surrogacy arrangements with cross-border effects for the sake of comprehensiveness of the future legal act on the issue. For this purpose, the paper indicates - based on the preliminary research conducted by the Hague Conference on Private International Law - those elements that should be included in future legislation of Serbia.

Comentario a la sentencia de la audiencia provincial de Valencia núm. 949/2011 826 23-11/2011: No inscripción en el registro civil de los menores nacidos mediante gestación por sustitución

The Judgement of the Provincial Court of Valencia is, currently, the latest link in a series of events which main issues are the willingness for paternage, the freedom of the parties to choose, the technology of human assissted reproduction (surrogacy) and the legal status of children born by international surrogacy arrangements and its possible conflict with mandatory Spanish laws and with a series of general legal principles consecrated in the Spanish Constitution, such as the normative hierarchy, the non-commerciality of human being, the respect for their dignity, and the protection of the superior welfare of the minor, among others.

Birth registration and citizenship rights of surrogate babies born in India

International surrogacy arrangements have created paradoxical situations of ‘legal orphanhood’ where highly desired surrogate babies with multiple parents are not recognized by either the child's country of birth or the country of the child's commissioning parent(s). This article examines the parentage and citizenship status of children born to Indian surrogate mothers and foreign commissioning parent(s). In the absence of comprehensive legislation, Indian courts have struggled to address these fundamental issues of surrogate babies given the differing interests of the parties and countries involved. The rights of surrogate children are addressed only on an ad hoc basis and only after the commissioning parents encounter actual difficulties in taking children to another country. By viewing the rights of the surrogate child as paramount, surrogate children born through surrogacy arrangements in India should have their origins known and documented accurately to preserve their identity. In addition, Indian citizenship should automatically attach at birth to prevent statelessness. Contrary results place the interests of other parties above the rights of the child.

International Surrogacy Arrangements: An urgent need for Legal Regulation at the International Level

(2011). International Surrogacy Arrangements: An urgent need for Legal Regulation at the International Level. Journal of Private International Law: Vol. 7, No. 3, pp. 627-647.

International Surrogacy Arrangements: An Urgent Need for Legal Regulation at the International Level

International Surrogacy Arrangements: An Urgent Need for Legal Regulation at the International Level