International Surrogacy Research Articles

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.

Transnational Cross-Racial Surrogacy

The Indian movie Mala Aai Vhhaychy (“I Want to Be a Mother” in the Marathi language), in juxtaposition with the article in this issue of Affilia by Rotabi and Bromfield entitled “Intercountry Adoption Declines and New Practices of Global Surrogacy: Global Exploitation and Human Rights Concerns,” bring to the surface several cultural, social, ethical, economic, and professional social work issues that I address in this editorial. The movie asks a challenging question in relation to mothering: Does the poor, rural, Gujarati (Indian) mother, who would benefit financially from surrogacy, have any claim to the child she is bearing for an American fertility-touring couple? More questions are raised with the possibility that the child may be born with a handicap, with the response of the commissioning couple, and additional more positive and negative twists in the story. Rotabi and Bromfield’s article raises the ethical dilemma as well as human rights concerns arising from international surrogacy, using India as a case example. Both the movie and the article focus on gestational surrogacy by Indian women, for predominantly western couples.

Surrogacy with cross-border effects: Reality and law

This paper analyzes a topic which is highly ranked in law reviews throughout the world, due to the fact that gestational surrogate motherhood as a fact of life is subjected to very different legal regulation worldwide. Taking advantage of the lack of an international legal framework in this domain and the permissive national regulations of some states, persons who want to become parents of a child who is genetically related to them, use the services of surrogate mothers abroad. The legal parenthood the commissioning persons acquire in the country where the surrogate mother gives birth to the child, and the connected legal status of the child, however, is called into question, because the effects of the international surrogacy are submitted to the rules of private international law of the local state whose nationals the commissioning persons are and / or where they have their residence. The problems are shown through three selected cases of comparative judicial and administrative practices, illustrating the practical difficulties, and speaking in favor of initiatives for drawing up international legal framework for gestational surrogacy with cross-border effects.

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

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.

The global reproductive health market: U.S. media framings and public discourses about transnational surrogacy

During the first decade of the 21st century a new “dramatic story” about the growing global surrogacy industry brought renewed attention to surrogacy as a social problem and a health policy issue. This paper asks: What cultural assumptions about gender, family and the global reproductive health market are revealed in current U.S. media coverage of and public discourses about surrogacy? From a qualitative analysis of prominent news accounts of surrogacy that were published in 2008, New York Times articles and blogs published on the topic between 2006 and 2010, and over 1000 online reader comments to these articles, I identify key frames used to discursively construct and debate the international surrogacy market. This study reveals the distinct contrast between the occasions when reproductive labor is rhetorically distanced from commodification processes and when it is linked to those processes. The findings contribute to intersectional analyses of assisted reproductive practices and women’s health/bodies/gametes. In particular, this study’s analysis of recent media framings of and public discourses about surrogacy across the globe serves as another illustration that national/classed/racialized bodies continue to be reproductively stratified via differently gendered discourses about women, motherhood and family.

Domestic and international surrogacy laws: implications for cancer survivors.

Much of the focus in the new field of oncofertility has been on preserving cancer patients’ fertility prior to treatment that is likely to diminish their fertility or render them sterile. Less attention, however, has been paid to the logistics of using frozen eggs, embryos, or ovarian tissue following cancer treatment. It is usually assumed that, following some manipulation, the frozen eggs, embryos, or ovarian tissue will be transferred back into the women’s bodies via assisted reproductive technology (ART) so that they can become pregnant. Some women, however, cannot utilize this technology because their cancer treatment has left them unable to gestate. If these women desire biological children and have banked eggs, embryos, or ovarian tissue, then the only option available to them is surrogacy.

FAIR TRADE INTERNATIONAL SURROGACY

Since the development of assisted reproductive technologies, infertile individuals have crossed borders to obtain treatments unavailable or unaffordable in their own country. Recent media coverage has focused on the outsourcing of surrogacy to developing countries, where the cost for surrogacy is significantly less than the equivalent cost in a more developed country. This paper discusses the ethical arguments against international surrogacy. The major opposition viewpoints can be broadly divided into arguments about welfare, commodification and exploitation. It is argued that the only valid objection to international surrogacy is that surrogate mothers may be exploited by being given too little compensation. However, the possibility of exploitation is a weak argument for prohibition, as employment alternatives for potential surrogate mothers may be more exploitative or more harmful than surrogacy. It is concluded that international surrogacy must be regulated, and the proposed regulatory mechanism is termed Fair Trade Surrogacy. The guidelines of Fair Trade Surrogacy focus on minimizing potential harms to all parties and ensuring fair compensation for surrogate mothers.

Reproductive Outsourcing to India: WTO Obligations in the Absence of US National Legislation

This article examines the World Trade Organization (WTO) obligations that inhere from US persons or couples contracting with Indian women for gestational surrogacy. Surrogacy contracts are considered in the context of the General Agreement on Tariffs and Trade (GATT) and the differing laws on surrogacy of different US states. By exploring WTO Appellate Body (AB), Panel and GATT Panel decisions, this article endeavors to determine what WTO obligations bind the US in circumstance of cross–border surrogacy contract. This article addresses how the varying state laws on surrogacy affect the WTO obligations of the US in market access, national treatment and most–favoured–nation (MFN) treatment. The article concludes that there are a variety of ways in which the different state laws have the capacity to violate US trade commitments in relation to international surrogacy contracts. In addition, the analysis serves to illuminate the process under which US trade obligations can be scrutinized to determine what commitments are relevant to a service not contemplated in the US Schedule.

Dismantling Assumptions: Interrogating “Lesbian” Struggles for Identity and Survival in India and South Africa

These accounts from India and South Africa demonstrate that contemporary politics of intimacy and survival cannot be approached through frameworks that create a simple binary between the proverbial First and Third Worlds. At the same time they foreground the limitations of feminist theories emerging from Northern academic institutions. Can our existing frameworks adequately represent the struggles of women in same-sex relationships who are located in the most socioeconomically peripheralized areas of the world? Can we analyze the politics of sexuality and intimacy in their lives without diminishing the centrality of neocolonial histories and geographies and their everyday struggles over access to material resources? How if at all can we integrate insights from critical development studies and lesbian studies to address these contradictions and questions? (excerpt)