International Surrogacy Research Articles

Comparative analysis: Surrogacy regulation in India and global perspectives

This research paper examines the complex regulatory environment surrounding surrogacy in India, investigating its historical development and the intricate interplay of legal, ethical, and cultural factors. The paper examines the regulatory reforms that ensued after India became a prominent international hub for commercial surrogacy, with a specific emphasis on the intricate provisions of the Surrogacy (Regulation) Act, 2021. It emphasizes the impact of the act and addresses any limitations that were previously present. This study investigates the constitutional and legal ramifications that arise from the criteria for eligibility, with a particular focus on the effects on the infant, surrogate mothers, and intended parents. With the assistance of a global comparative analysis, this paper provides a nuanced perspective on surrogacy laws in Ukraine, the United States, and the United Kingdom, among others. These three jurisdictions were selected due to the fact that their surrogacy legislations regulate the industry to varying degrees: Ukraine regulates commercial surrogacy, the United States has state-made legislation, and the United Kingdom's legislation is very similar to that of India. The core of the manuscript consists of ten recommendations that are specifically designed for the Indian context. These recommendations promote the following: comprehensive legislation, parental rights recognition, autonomy for surrogate mothers, and ethical guidelines. The aforementioned suggestions encompass public education initiatives, anti-discrimination protocols, and international surrogacy regulations. In conclusion, the paper proposes a legal structure that is congruent with the cultural heterogeneity of India, thereby cultivating an atmosphere for surrogacy arrangements that is ethical, inclusive, and transparent.

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.

Surrogates’, intended parents’, and professionals’ perspectives on ways to improve access to surrogacy in Australia

Abstract While altruistic surrogacy arrangements are permitted in Australia, commercial ones are not. Regardless of this, most intended parents undertake commercial arrangements by bypassing domestic laws and engaging with foreign surrogates. Considering the welfare risks and ethical concerns associated with international surrogacy, developing a more accessible model of surrogacy in Australia has been proposed as a harm minimization approach. This study aims to describe how Australians who have navigated or facilitated surrogacy believe access to arrangements could be improved. Australian surrogates, intended parents, parents through surrogacy, and surrogacy professionals were interviewed, and interview transcripts were analysed thematically. The themes identified were ‘improve public awareness’, ‘develop policies to guide healthcare practitioners’, ‘establish agencies’, and ‘reform the law’. ‘Reform the law’ had four sub-themes: ‘harmonise laws across the states and territories’; ‘grant intended parents legal parenthood at birth’; ‘legalise commercial surrogacy and gamete donation’; and ‘fair surrogate compensation’. Findings indicate that improving access to surrogacy in Australia will require an overhaul of the legislative environment relating to surrogacy and gamete donation, policies to guide healthcare practitioners, and public awareness campaigns.

International Surrogacy and Stateless Children: Article 7 UNCRC and the Harmful Effects of Statelessness

International Surrogacy and Stateless Children: Article 7 UNCRC and the Harmful Effects of Statelessness

The right to respect for private and family life of children born through international surrogacy in the case law of the European court of human rights

AbstractThe ECHR is a general human rights convention, but it contains some provisions that have gained particular importance in the case law of the ECtHR regarding the human rights of children. Such a provision is, among others, Article 8 on the right to respect for private and family life, the interpretation of which has raised many questions in cases related to children born through international surrogacy. These questions have arisen in relation to the intended parents' standing to bring an application before the Court on behalf of the child, the criteria for ascertaining the interference of the respondent state with the child's right to respect for his private and family life, as well as the specific content of the requirements that must be met for the interference to be justified. By analysing these questions and the answers the Court gave to them, this article attempts to give an overview of the state's obligations to ensure the right of a child born through international surrogacy to respect for his private and family life in connection with the recognition of the parent-child relationship between the intended parents and the child.

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.

Attitudes toward Reproductive Tourism and Cross border reproductive care (CBRC): Legal, Economic, Ethical issues and dilemmas, possibilities and limitations

The goal of the present study is to discuss the issue of Cross-Border Reproductive Care known as CBRC and Reproductive Tourism. The subject is of great interest as this type of tourism has been flourishing in recent years, without, however, being thoroughly researched, regarding the very important, health, quality of medical care, financial, ethics, legality and transparency or illegality, aspects concerning the processes that are carried out for the desired result of human reproduction. In addition, one of the sharpest-increasing types of Cross-Border Reproductive Care is international surrogacy. Thousands of interested people travel abroad for IVF and ICSI treatment, or with the aim to employ the paid services of foreign surrogates. The search for solutions has made CBRC a global industry. It is a multibillion-euro international industry introducing unique legal, financial, ethical, and risk-management challenges and disputes.
 The current study addressed this gap by examining Greek citizens’ attitudes toward Reproductive Tourism and Cross border reproductive and their legal, financial, ethical, consequences. To test the research hypotheses, a survey was conducted on 652 Greek citizens, who answered a questionnaire, which was distributed electronically in the format of a Google form. For the data analysis the study used the multiple correspondence analysis – MCA of sphere of multivariate data analysis.
 The results discuss, as far as the legal dimensions are concerned, the restriction on specific reproductive treatments in the country of residence. IVF and ICSI are allowed in almost all countries but there are legal restrictions regarding the age of the woman or the couple, unmarried couples, single woman, gay, transgender and same-sex couples. As far as the financial dimension of the CBRC is concerned, the study discusses the lack of financial data that is a natural consequence of the lack of both national and global registers. The cost of infertility treatment seems to be one of the most basic reasons for those interested to seek assisted reproductive services outside the borders of their country of origin and residence, and the commercialization of health is an ethical issue that deserves further study in relation to the country of destination. In addition, the study discusses main ethical issues regarding donors and surrogate mothers, among others, which have to do with their exploitation, their moral and physical harm, possible child abuse, parental rights and the sale of babies which are considered of a major importance. Donor or surrogate mothers may suffer from serious and even life-threatening complications. Donor or surrogate mothers from low and economic backgrounds do not have the possibility of legal support and coverage and cannot claim parental rights. Additionally, the study debates the high cost of treatments, health and care benefits, the economic exploitation of women from countries with weak economies, the instrumentalization of women, the legal issues and rights of descendants born in destination countries and in terms of their repatriation, the correct information and informed consent for the medical procedures to be performed, as well as many others because the list is long.
 According to the study the need that is obvious, due to the great impact of the CBRC, concerns the creation of a universal protocol through the European Council and the College of Obstetrics and Gynaecology (EBCOG) as well as the American College of Obstetrics and Gynaecology (ACOG) to remove all the above mentioned issues , issues and moral dilemmas that above all will guarantee the good of health, justice, non-harm, the good of justice, autonomy and self-determination and finally, human rights.

Assisted human reproduction legislation: Listening to the voice of patients

ObjectiveLegislation and policies regarding assisted human reproduction (AHR) vary widely across nations and societies. As one of only 5 European countries which currently lacks legislation, Ireland now has a unique opportunity to learn from other jurisdictions and introduce AHR law that is reflective of the ongoing myriad developments in this complex field. Draft legislation, initially published in 2017, was revised in 2022 with strong political commitment to enacting in the same year. This study sought to ascertain the views of fertility patients (service users) to the proposed AHR legislation in its current format, prior to its implementation. Study designA survey questionnaire, previously designed to investigate the attitudes and perceptions of healthcare professionals (HCPs) towards a broad range of issues contained within the draft AHR Bill, was adapted for a patient/service user population. The survey link was distributed via secure email to all patients that had a doctor consult at our fertility clinic in 2020–2021. ResultsThe survey link was sent to 4420 patients/service users, of whom 1044 (23.6%) responded. A majority had experienced AHR treatment. Service users indicated strong support for AHR regulation and for access to all AHR techniques for all patients, irrespective of relationship or gender status. A majority of respondents disagreed with aspects of the draft bill regarding mandatory counselling, the timing of assignment of parentage in surrogacy, the exclusion of international surrogacy and the exclusion of men from posthumous AHR. Interestingly, the fertility patient cohort were more liberal in their views and opinions regarding AHR than the Irish HCPs previously surveyed. ConclusionThis study demonstrates the views of a large group of AHR patients/service users towards proposed AHR legislation. Many of their views concur with but others differ from those of the drafters of the legislation and from those of healthcare professionals. Consideration of the views of all these groups and a collaborative approach would help ensure that Ireland has AHR legislation that is inclusive and fit for purpose in the 21st century.

Assisted human reproduction legislation: Acknowledging the voice of health care professionals

ObjectiveIreland is one of 5 European countries which currently lacks specific legislation on Assisted Human Reproduction (AHR). Draft legislation was introduced in 2017 and revised in 2022 with a view to enacting legislation this year (2022). This study sought to ascertain the views of healthcare professionals to proposed AHR legislation, prior to the implementation of that legislation. Study designA survey questionnaire based on all clinically relevant aspects of the Irish draft AHR Bill 2017 was distributed to relevant healthcare professionals using an online platform. ResultsOver 200 healthcare personnel indicated strong support for the availability of AHR techniques, access to treatment for all patient populations regardless of relationship or gender status, and appropriate legislation and regulation in the field. Views of respondents are at variance with several proposals surrounding surrogacy, with 84 % favouring a pre-birth order to assign parentage from birth, rather than the proposed birth order 6 weeks after birth. The majority also support legislation around international surrogacy. Contrary to the draft Bill, respondents believe that men, as well as women, should be able to use posthumously any stored gametes or embryos belonging to the deceased partner or the couple. While the majority favour altruistic gamete donation, respondents support more generous compensation for donors, such as compensation for time lost at work. ConclusionThis study has uniquely ascertained the views of healthcare professionals to imminent AHR legislation. It is hoped that the results will help inform the national legislation as it nears completion. Similar studies could help other countries, and policy bodies such as ESHRE to frame good legislation in this extremely specialised and complex field.

The Legal Landscape of Surrogacy in China

Surrogacy has increased globally due to the development of medical technology. In light of the abolition of the one-child policy in China, demand for surrogacy among Chinese citizens has increased, especially in single-child families that would like a second child but worry about childbearing at an advanced age. Meanwhile, highly educated women tend to have children at an advanced age. Hence, the need for surrogacy has risen. However, current policies and laws in China prohibit surrogacy, resulting in a domestic black market and people seeking international surrogacy. This article surveys legal and judicial practices in China and attempts to forecast whether China is likely to explicitly prohibit or legitimize surrogacy in the short term.

Global Trends in Surrogacy Uptake by Destination and Nationality 2018–2020

Background: Cross-border surrogacy arrangements are an increasingly common means to family building globally amongst gay male singles and couples, as well as infertile heterosexual singles and couples who do not have significant access to other routes to parenthood. Research has shown that when regulation or affordability in a home state is too restrictive people will travel across borders for surrogacy extensively. Establishing patterns of use has always been difficult. Accurate data is stymied by lack of documentation of international third-party reproductive care available to authorities. In addition, surrogacy destinations have been in a state of flux for some years. Estimating the trends in source and destination countries will improve understanding of the populations whose reproductive care needs cannot be met in their home country. Such data can assist regulators, policymakers and professionals to understand these trends and provide education and policy to minimise risk. Aim: Provide a quantitative estimate of the trends in relation to intended parents engaging in surrogacy arrangements per destination country, in the three calendar years 2018, 2019 and 2020, by country of residence. Method: Surrogacy agencies in Canada, Colombia, Cyprus, Georgia, Guatemala, Kenya, Mexico, Thailand, Ukraine and USA were asked to complete an anonymised online survey providing aggregate data on the number of commissioning singles and couples who contracted for surrogacy services during each year by nationality of the biological parent(s). Results: Over thirty agencies across eight nations reported on a total of 6550 clients commencing over these three calendar years. Clients from 96 source countries were represented. Results showed stark differences in the largest user nations of domestic and international surrogacy per capita, the most commonly used ‘destination’ countries and changes in patterns of engagement over time. Conclusion: Some source countries showed far higher rates of update of domestic or international surrogacy than others. Differences are likely associated with varying access to alternative family building pathways, differences in kinship norms, average incomes and the lack of availability of surrogates in their own country due to obstructive laws and/or cultural norms.

Surrogates’ and Intended Parents’ Experiences of Surrogacy: A Systematic Review

Background: Surrogacy arrangements can be conducted domestically, where the surrogate and intended parents live in the same country, or internationally, where the intended parents engage a surrogate in a foreign destination. Understanding the experiences of people participating in surrogacy arrangements can inform policy to protect the best interests of all parties. Aim: To review the evidence relating to surrogates’ and intended parents’ experiences of surrogacy arrangements. Method: Studies of surrogates’ and intended parents’ experiences of a surrogacy arrangement, published since 2005 in English language peer reviewed journals were identified by searching Embase, Medline, PsycInfo and Scopus. Data relating to each participant group were synthesised separately using thematic analysis. Methodological quality of the studies was assessed using the QualSyst scoring system. Results: 67 articles were included in the synthesis. The mean QualSyst score was 0.78/1. Four themes relating to surrogates’ (exercising agency, making sense of their maternal identity, forming a relationship with the intended parents’, and accessing information and support) and intended parents’ experiences (navigating the law, rationalising the financial transaction, forming a relationship with the surrogate, and accessing information and support) were identified. Intended parents faced legal barriers when seeking domestic arrangements and difficulties when obtaining legal parenthood and citizenship for their child after an international arrangement. Having a close relationship between participants contributed to a positive experience for both parties. Conversely, a distant relationship, whether emotionally or geographically, negatively impacted participants’ experiences. Conclusion: Legal barriers in the home country lead some to seek international surrogacy which limits opportunities for intended parents and surrogates to form a close relationship and poses legal challenges when they return home. Removing the legal barriers to domestic surrogacy would allow more arrangements to be conducted where participants have a better prospect of forming close relationships and can avoid the challenges inherent in international arrangements.

Transnational Feminist Itineraries: Situating Theory and Activist Practice ed. by A. Tambe and M. Thayer

Reviewed by: Transnational Feminist Itineraries: Situating Theory and Activist Practice ed. by A. Tambe and M. Thayer Yoly Zentella Tambe, A. and M. Thayer, eds. Transnational Feminist Itineraries: Situating Theory and Activist Practice. Durham: Duke University Press, 2021. Transnational Feminist Itineraries is an edited volume of feminist-focused writings that connect solidarity and the shared and diverse goals of universal movements within the context of confronting and countering violence and injustice against women. The volume is appropriate for academics, researchers, doctoral students, and those well versed in analytical writing and terminology. It is not for the general lay reader. The expertise of the editors, Tambe and Thayer, is evident in the assemblage of writings. Both editors are active in women, gender, and sexuality studies. [End Page 446] Tambe is also associate professor in sociology studies at the University of Mary-land, College Park, and educational director of Feminist Studies, a journal of interdisciplinary feminist scholarship in the United States. Thayer is associate professor in sociology at the University of Massachusetts, Amherst, and is affiliated with the Center for Latin America, Caribbean, and Latino Studies. Transnational Feminist Itineraries is a platform for voices discussing complex issues, both existing and emergent, outside Euro-American power spaces. Here, transnational is not perceived as "elsewhere" but instead as globally inclusive, a collective vision working toward a consistently just future for the female gender. The collection of articles in this volume reflects a gathering of scholarship with settings in North and South America, Africa, Australia, and Asia. This collection continues decades of evolving transnational feminism thought, adding to contemporary analysis and activism in the field. Seeds of thought reach back to the Women's Worlds Conference in Brazil, 2017. Arranged thematically in five sections, writings describe problem areas in the lives of women and girls that challenge the reader. Each section includes articles addressing connecting issues, contexts, and spaces. For example, in section four, Intractable Dilemmas, Naples and Bernstein's article, "Reproductive justice and the contradiction of international surrogacy claims by gay men in Australia," addresses conundrums embedded in the desire by gay men for parenthood, and its relation to women's reproductive rights free of exploitation within the surrogate role. Naples and Bernstein clearly describe the need to recognize the privileged status of those seeking commercial surrogate services, in this instance, gay men in Australia. These are key observations, because of the glaring persistence of "neoliberal, racial, class, and gendered inequalities" (169), within a gay rights issue, and reflect in this setting commonly found problematic thought and behavior. In an effort to protect their own interests and survival, actors espouse through their actions the sentiment justice for some but not for all; the interest of one superseding another. The strength of this volume is in its raising awareness through academic discourse of feminist perspectives on various issues crossing boundaries and multiple populations. However, because of the academic nature of the volume, a necessary question arises; will such valuable thought be translated in lay language? The ideas presented need to reach grassroots populations if concrete change is to take place. How will the contradictions presented by Naples and Bernstein trickle down to individuals in the general gay male community eager [End Page 447] to form a family? The question continues: Is the trickle left in the hands of activists exposed to the Naples and Bernstein article or similar writings? Is it possible for the dilemma of fatherhood and commercial surrogacy to be housed in slender, cheaply produced volumes, made freely or inexpensively available, a la Rius (Eduardo del Rio)? (Rius, a Mexican intellectual and political cartoonist, produced simply stated yet acutely written and illustrated books for a general readership addressing crucial political concerns and erroneous myths perpetuating a state of subjugation for the Mexican masses.) Additionally, the Middle Eastern feminist perspective is absent in the volume. One wonders how, for example, the perspectives of Palestinian women living under the occupation would link to the theories and activism described in this volume. And how would their views coincide with Jewish Israeli women's feminist perspectives? Perhaps this would be a space in which to build empathy and solidarity. This is a volume for academics immersed in...

Ethical and legal perspective of surrogacy in India

Surrogacy is an important alternative method of reproduction where traditional methods are not possible. However, several legal, ethical, medical and economic arguments have been made against this practice. Recent developments in the legal framework governing surrogacy aimed to answer these questions. Through the introduction of the surrogacy (regulation) bill 2019 provisions have been made to regulate centers providing surrogacy, preauthorization of surrogacy contracts and make a complete mental and physical evaluation of surrogates prior to entering the contract mandatory. However, the bill completely prohibits commercial and international surrogacy providing the vacuum for creation of other possible problems. Hence, there is still a need to find a balance between the ethical, legal, scientific and social aspects of surrogacy.

The Identification of Legal Parentage in International Surrogacy

The Identification of Legal Parentage in International Surrogacy

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.

Surrogacy milieu in India: a legislative vacuum

Surrogacy gives hope to couples who are unable to carry child on their own. Single men, women and same-sex couples can also opt surrogacy to have their own genetic child. Surrogacy has adjourned the practice of adoption by childless couples who can bear the cost of surrogacy. Recent past has witnessed the blooming of surrogacy clinics all over the world. Eligibility of surrogates, process, legality and expenses, involved in surrogacy, differ from country to country. Most of the countries do not have surrogacy regulating legislation in force. Few countries prohibit surrogacy, while some ban commercial surrogacy and permits altruistic one. Even international surrogacy is not allowed in some jurisdictions. Easy availability and low costs of surrogacy procedures in developing countries have made surrogacy a lucrative business. India developed into a hub of commercial surrogacy with no harsh laws, regulating surrogacy clinics. Even though commercial surrogacy has been banned, still lack stringent laws, governing surrogacy clinics in the country, creating a legislative vacuum. Legal and ethical issues surrounding the surrogacy are also complex, thereby making it difficult to differentiate whether surrogacy is a boon or bane. The need of the hour is to legalize altruistic surrogacy and prohibit commercial one. Till laws being enacted and appropriate monitoring authorities are instituted, one has to assess with his/her conscience what is right and where wrong begins

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.

Commercial Gestational Surrogacy: Unravelling the threads between reproductive tourism and child trafficking

Narratives of commercial gestational surrogacy (CGS) as ‘baby-selling’ often conflate or interchange the transfer of children born via surrogacy with trafficking in children or the sale of children, two sometimes overlapping but nonetheless distinct offenses. Moreover, anti-trafficking laws have been used to police cross-border CGS. But when do CGS arrangements fall within the category of legitimate ‘reproductive tourism’ and when do they amount to child trafficking? In this paper I critically explore intersections between human trafficking laws and CGS, vis-à-vis the child, charting the relevant trafficking laws in the context of international surrogacy, and analysing whether trafficking laws are an appropriate mechanism through which to regulate CGS. I conclude that while child trafficking might occur via surrogacy, CGS in itself is not child trafficking under international law.