SIXTH WORLD CONGRESS ON FAMILY LAW AND
CHILDREN’S RIGHTS: INTERNATIONAL SURROGACY
TRENDS: HOW FAMILY LAW IS COPING
Professor Mark Henaghan*
1.
Introduction
International surrogacy has become a steadily growing industry since the beginning of
the 21st century. In a world where increased global mobility and the internet allows
users from around the world to buy clothing from American boutique stores and read
newspapers from Doha, those who want to be parents are beginning to take advantage
of these same processes to create a child of their own. In addition to the normal legal
issues created by new technology such as gestational surrogacy, the divides between
different legal jurisdictions has not kept pace with the decreasing restriction of
borders in globalised transactions.
The birth of a child of a surrogate mother in one country with genetic or intended
parents from another creates a myriad of legal hurdles often not anticipated by those
involved at the time of artificial conception. The commercial aspect of many cases of
international surrogacy is particularly complex, given that different jurisdictions take
a vastly different approach as to whether the commercialization of gamete donation,
pregnancy and childbirth is morally and legally acceptable. This creates a number of
legal conflicts that can leave children born of international surrogacy both stateless
and parentless.
The lack of international regulation in relation to surrogacy potentially encroaches the
human rights of the often-vulnerable surrogate mothers and children involved.
Instead, protecting all the parties involved is left up to habitually scantily detailed
contracts – which may or may not be legally enforceable – between surrogate mothers
and commissioning parents.
After setting out the background and context of international surrogacy, these
problems will be examined below. This will be followed by an analysis of some of the
solutions, both those already applied and those proposed, to the issues involved in
international surrogacy.
2.
International Surrogacy
There are two forms of surrogacy; traditional and gestational. In traditional surrogacy
the egg of the surrogate mother and the sperm of either the intended father or a sperm
donor are used, so the child is genetically related to the surrogate mother. Since the
1990s scientific advances and IVF have enabled gestational surrogacy to be used
instead, which involves the surrogate carrying a child that she is not genetically
related to, created from eggs and sperm deriving from either the intended parents or
donors. This creates additional complexity as three women become involved in the
birth of a child; the intended mother, the egg donor and the surrogate who carries and
*
Professor and Dean of Law, Faculty of Law, University of Otago, Dunedin, New Zealand.
Contact information: mark.henaghan@otago.ac.nz. The author wishes to thank Charlotte
Greenfield and Emma Bowman for their excellent research assistance in compiling this
conference paper and Ruth Ballantyne for her significant editorial assistance.
1
gives birth to the child.1 Legal issues arising from such arrangements include the
parentage of the child, citizenship, immigration, and contractual issues.
Countries have taken different legislative approaches to commercial surrogacy
arrangements, which combined with a lack of international regulation, creates a
number of legal problems and conflict of law issues. Several countries, including
France,2 Italy, Germany, China and Japan ban surrogacy arrangements altogether,
even if no commercial element is present in the agreement. Others such as the United
Kingdom, Australia, New Zealand, Israel, and Holland allow altruistic surrogacy
only. In only a few countries is commercial surrogacy is allowed and surrogacy
agreements legally enforceable. These countries, including India, Ukraine, Russia and
some American states (notable California and Florida) have consequently become
destinations for couples seeking a child via surrogacy.
Because surrogacy and commercial surrogacy arrangements are illegal in most
European countries, European intending parents frequently go to the United States
seeking commercialized surrogacy agreements. Within the United States, different
states have different laws in relation to surrogacy, meaning that even American
intending parents regularly travel outside their home states to jurisdictions such as
California and Florida in order to complete surrogacy arrangements.
In recent years, the Indian Government’s efforts to promote India as a cost-effective,
quality medical tourism destination, as well as the abundance of women willing to be
surrogates for a lower price (compared to the United States) has meant that increasing
numbers of couples have travelled from Western countries to India to commission
their children. The Indian reproductive tourism industry is now worth an estimate
USD 500 million, with over 200,000 clinics operated around the country.3 Many of
these clinics are aimed at Indian citizens, however many more specialize in foreign
(or nonresident Indian) commissioning parents who are willing to travel around the
world to create a child.
These clinics usually extend their services from the purely medical, to arranging every
conceivable practicality a couple will face travelling to India to have a child. Contrary
to dystopian fears of women being “too lazy” to carry their own babies, clinics
usually attract, infertile and gay couples, as well as single people wanting children.
The cost is considerably lower than in Western countries. All expenses, including
travel costs, medical procedures and compensation for the surrogate mother usually
total around USD 25,0004, about a third of the cost as in the United States.
Surrogates are usually women with children of their own, drawn to surrogacy by the
sum of money they will receive, which is often far larger than their annual salary and
enough to buy a house or finance their own children’s education. Surrogate mothers
1
Erica Davis “The Rise of Gestational Surrogacy and the Pressing Need for International
Regulation” (2010) 21 Minn J Int’l L 120 at 123.
2
Article 16-7 of the Code civil des français (French Civil Code) translates to “All agreements
relating to procreation or gestation on account of a third party are void.” See Georges Rouhette
and Anne Rouhette-Berton “Equal Jus Database - European Network for the Legal Support of
LGBT Rights” (4 April 2006) <www.http://archive.equal-jus.eu/>.
3
Anil Malhotra and Ranjit Malhotra “All Aboard For the Fertility Express” (2012) 38
Commonwealth Law Bulletin 31, at 31.
4
Amelia Gentleman “Foreign Couples Turn to India for Surrogate Mothers” The New York Times
(online ed, New York, 4 March 2008).
2
live at the clinic and are closely monitored throughout their pregnancies. It is
extremely uncommon for a surrogate to be genetically related to the child they bear.
The commissioning parents provide the genetic material for the baby or, if this is not
possible, Indian, European or American sperm and/or egg donors are sourced.
While India is undoubtedly the most common location for commercial surrogacy,
other developing countries such as Panama and Thailand are also popular
destinations. Equally, the relaxed regulatory regimes found in the Ukraine and Russia
afford European intending parents an option that is closer to home than Asia or South
America.
Thailand is a common surrogacy destination for commissioning parents from
Australasia. Thailand has no specific laws dealing with surrogacy, so legal issues
arising have to be dealt with under the Thai Civil and Commercial Code. Section
1546 states that the birth mother is the legitimate mother and has sole legal custody,
although s 1547 provides that “a child born of parents who are not married to each
other is legitimised… by registration made on application by the father” provided the
mother and court consent. This enables genetic fathers to apply to the Thai family
Court to ‘legitimise’ their children giving them legal parental status. It is also
potentially possible to apply to the court under the Thai Civil Commercial Code to
remove the parental power of the birth mother, although courts are reluctant to do so
without evidence of serious misconduct by the mother.5
3.
Conflict of Laws: Nationality, Parentage and the Illegality of Surrogacy
Children created via surrogacy are often born with an uncertain status as to their
parentage and nationality. Conflicting laws between jurisdictions on parentage,
citizenship and surrogacy mean that a child can end up with no legal parents or
nationality.
Parenthood usually has three components – an intention or willingness to have a
child, genetic consanguity and, in the case of motherhood, gestating and giving birth
to a child. Surrogacy can divide these components between two to three different
‘mothers’ and one or two different ‘fathers’. Determining who the legal mother and
father are in such situations is frequently a difficult task and different jurisdictions
have taken different approaches to this task. Because a child’s citizenship is usually
based on parentage and place of birth, this can be equally complicated and a
jurisdiction’s interpretation of parenthood will usually have implications for a child’s
nationality.
Matters are made worse by the fact that commissioning parents usually come from
countries that ban either surrogacy or commercial surrogacy. Consequently, the laws
relating to parentage and citizenship are often interpreted in such a way as to exclude
commissioning parents from becoming legal parents of a child born overseas via
surrogacy. Adoption would seem an obvious solution to this problem, but adoption
laws often stipulate many stringent requirements that exclude commissioning parents
from adopting their child (for example, payment or knowledge of the birth mother is
often prohibited in international adoption).
5
The Thai law on surrogacy is discussed in Ellison v Karnchanit [2012] FamCA 602 at [24]-[27].
In this case no such application had been made in Thailand, and no specific instances of
intending parents using this application process was discussed.
3
Commissioning parents are frequently unaware of these legal problems. This may be
due to the intending parents’ desire for a child overwhelming their better judgment.
This is often fuelled by the practice of agencies facilitating international surrogacy to
encourage couples to ignore laws implemented in their own countries and downplay
the risk of this to their parental rights to the child that results.6 For example, one
United States based surrogacy website completely minimises the legal and
immigration issues associated with international surrogacy. The website states:7
Since surrogacy became legal in the United States, more than 30,000 births have resulted from
surrogate mothers. The United States is the preferred country for intended parents from all over
the world who are looking for international surrogates. ConceiveAbilities is conveniently
located in Illinois, one of the most surrogacy-friendly states in America. The Illinois Gestational
Surrogacy Act provides additional flexibility, stating that intended parents do not need to be
Illinois residents and that a birth certificate will be issued with the names of the intended parents
- avoiding the need for complicated court proceedings. Laws in other American states do not
provide the same protection for surrogacy.
The situation has reached the point that in 2010 a letter was sent to a number of
Mumbai IVF clinics from the consul generals of Belgium, France, Italy, the
Netherlands, Poland, Spain and the Czech Republic.8 This directive stressed that
clinics needed to direct potential parents seeking surrogacy towards their embassies
for approval before initiating the surrogacy process.
A number of cases have arisen as a result of commissioning parents being unable to
establish their legal parenthood and their child’s national identity. A selection of cases
are described below.
3.1. The Balaz Case9
A German couple, Mr and Mrs Balaz, commissioned a surrogate pregnancy in India
using Mr Balaz’s sperm and a donated egg. As a result, Nikolas and Leonard were
born in India in 2008 but had to remain there for two years due to their statelessness.
The twins were originally registered and issued with Indian birth certificates naming
the Balazs as their parents. A legal battle ensued when the German authorities refused
to recognize the birth certifications as establishing the parentage or German
nationality of the twins due to surrogacy being illegal in Germany.
The Balazs turned to judicial procedures to seek Indian passports for the twins. A
lower court refused to recognize the children as Indian because they lacked an Indian
‘parent’. The authority that had issued the birth certificates then recalled them and
replaced Mrs Balaz with the Indian gestational surrogate as the children’s ‘mother’,
while Mr Balaz remained identified as the ‘father’. Passport authorities then allowed
the application for two Indian passports.
6
Usha Rengachary Smerdon “Crossing Bodies, Crossing Borders: International Surrogacy
Agreements Between the United States and India” 39 Cumberland Law Review 15 at 30.
7
ConceiveAbilities “International Surrogacy” (26 February 2013)
<www.conceiveabilities.com/>.
8
“Bar Our Nationals, European Countries Tell Surrogacy Clinics” The Times of India (online ed,
India, 14 July 2010).
9
Jan Balaz v Anand Municipality LPA 2151/2009, 17 November 2009 (High Court of Gujarat,
India). See also Yasmine Ergas “The Trans-Nationalization of Everyday Life: Cross-border
Reproductive Surrogacy, Human Rights and the Re-visioning of International Law” (12 March
2012) Institute for the Study of Human Right: Columbia College < http://hrcolumbia.org/>.
4
However, the Indian Ministry of External Affairs ordered the Balazs to surrender the
passports while the matter went before the High Court of Gujarat. The Court
recognized the nationality of the children as Indian because they were born on Indian
soil to an ‘Indian mother’, meaning gestational mothers were now recognised as legal
mothers, despite birth certification practices undertaken in most surrogacy clinics to
the contrary. Nevertheless, the Indian passport authority refused to reissue the twins’
passports.
India’s Highest Court, the Apex Court, finally considered the matter in December
2009. It urged Indian authorities to consider non-judicial avenues and suggested
adoption as a possible solution. Adoption was not possible because of certain
requirements in the Hague Convention on Protection of Children and Co-operation in
Respect of Intercountry Adoption and in Indian law that had not been met, such as the
children needing to have been orphaned or abandoned and no contact being allowed
between the birth mother and intended adoptive parents. The Apex Court asked the
Central Adoption Agency to reconsider its jurisdiction. Before this took place,
Germany issued the children with visas and the Balaz twins were able to leave India
with the agreement that the Balazs would formally adopt the twins in Germany under
German law.
3.2. The Baby Manji Case10
In 2008 a baby was born to an Indian surrogate mother and commissioning parents
from Japan. The Japanese couple had used the husband’s (Mr Yamada’s) sperm and
an Indian donated egg to create the embryo. Shortly before Manji’s birth, Mr and Mrs
Yamada divorced and Mrs Yamada made no claim to the baby.
Following the directions of the chief registrar of the Anand Municipal Office, a birth
certificate was applied for and issued with only Mr Yamada’s name on it. Japanese
authorities told Mr Yamada that he would only be able to bring Manji to Japan by
adopting Manji pursuant to both Japanese and Indian laws and obtain an Indian
passport.
While Mr Yamada attempted to obtain the relevant documents to adopt Manji, an
NGO called Satya filed a petition in the Rajasthan High Court seeking to prevent
Manji from being taken out of India. Satya challenged the legality of commercial
surrogacy and accused the clinic where Manji was born of illegal trade in infants. It
alleged that the absence of surrogacy law in India meant that no one could claim to be
the parent of Manji, including Mr Yamada.
The Rajasthan High Court required Manji to be brought to them within four weeks. In
response Mr Yamada’s mother filed a writ of petition on Manji’s behalf with the
Supreme Court of India. The Supreme Court granted her temporary custody of Manji
and disposed of the proceedings involving Satya by ruling that the Commission
organised under the Protection of Children Act 2005 and not the Rajasthan High
Court was the appropriate forum for Satya’s complaints. The Supreme Court then said
that commercial surrogacy was legal in India.
After this judgment was issued, the Jaipur passport office gave special dispension and
issued Manji with a ‘certificate of identity’. The Japanese Embassy in New Delhi
granted Manji a one-year Japanese visa on humanitarian grounds and Manji’s
grandmother was able to take her to Japan.
10
Baby Manji Yamada v Union of India and Another (2008) 13 SCC 518.
5
3.3. Re: L (A Minor)11
This was one of the first cases in the United Kingdom addressing whether
international commercial surrogacy would be accepted under British law. A British
couple had paid a surrogate mother in Illinois to carry their baby, which ultimately
resulted in the birth of Baby L. The couple brought L, who had a United States
passport, to the United Kingdom after temporary leave to do so was granted. The
Court had to consider whether it would recognise the couple as L’s legal parents,
given that payment for surrogacy outside of “reasonable expenses” is illegal in the
United Kingdom under s 54(f) of the Human Fertilisation and Embryology Act 2008.
Hedley J issued a parental order in favour of the commissioning couple, holding that
the welfare of the child was the paramount consideration and in this case L’s welfare
outweighed any public policy considerations regarding surrogacy arrangements. The
policy arguments are described thus by Hedley J in Re S (Parental Order)12:
(1)
To ensure that commercial surrogacy agreements are not used to circumvent
childcare laws in this country…
(2)
The court should be astute not to be involved in anything that looks like the simply
payment for effectively buying children…
(3)
The court should be astute to ensure that sums of money which might look modest
in themselves are not in fact a substance that they overbear the will of a surrogate.
3.4. The Ukrainian Cases
The so-called Ukrainian cases Re: IJ (A Child)13 and Re: X & Y (Foreign
Surrogacy)14 involved very similar sets of facts and both appeared before Hedley J. In
each case the commissioning British couple had arranged a commercial surrogacy in
the Ukraine using sperm from the male partner, and a donated egg. Because the
surrogate was married, British law would regard the surrogate and her husband as the
legal parents under the Human Fertilisation and Embryology Act 1990. Ukrainian law
recognized the commissioning couples as the legal parents, meaning the children had
no right to residence or citizenship in the Ukraine.
The conflict between these two sets of laws meant that the children involved were
legally orphaned and stateless. British authorities stepped in and, after being provided
with evidence from a DNA test that the British commissioning fathers were
genetically related to the children, allowed the children to enter the UK “outside the
rules.”15
Focusing on the welfare of the children, Hedley J made a parental order in favour of
the commissioning couples in both circumstances and held the requirement in the
Human Fertilisation and Embryology (Parental Orders) Regulations 2010 for the
Home Office to be given notice of any parental order that would provide a child with
British citizenship would be dispensed with in cases of international surrogacy.
11
Re: L (A Minor) [2010] EWHC 3146 (Fam).
12
Re S (Parental Order) [2009] EWHC 2977(Fam), [2010] 1 FLR 1156.
13
Re: IJ (A Child) [2011] EWHC 291 (Fam).
14
Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam).
15
At [10].
6
As Hedley J states:16
The difficulty is that it is almost impossible to imagine a set of circumstances in which
by the time the case comes to court, the welfare of any child (particularly a foreign
child) would not be gravely compromised (at the very least) by a refusal to make an
order.
Consequently, in Re L17 (a later surrogacy decision) Hedley J stated that “it will only
be in the clearest case of the abuse of public policy that the court will be able to
withhold an order if otherwise welfare considerations support its making”.18
Therefore, in practice, the commercial nature of these international surrogacy
arrangements has not been an impediment to British couples being able to become the
legal parents to the children born of surrogates overseas, despite the illegality of
commercial arrangements domestically.19
3.5. D, L (Minors)(Surrogacy)20
In D, L (Minors)(Surrogacy) the court considered the consent of the surrogate mother.
The applicants for the parental order were civil partners who had paid a surrogate
mother in India to carry and give birth to twin boys. All arrangements were made
through a clinic and a formal court surrogacy agreement was entered into. The couple
took immediate care of the children following birth, but the clinic never produced the
required consent from the surrogate mother given six weeks after birth and became
increasingly hostile to the couple’s attempts to obtain this.21 Unable to find the mother
they applied for a parental order without the mother’s consent, and sought to invoke
the exception in s 54(7) to that requirement.
Emphasising that consent is a very important element to granting a parental order as
the surrogate is the “natural mother” with a “very special relationship” to the child,
the court nevertheless found that in this case her consent would not be required.22
Efforts had been made to find her, she had given consent six weeks after the birth of
the child, and the welfare of the child must be of paramount importance. As this was
the first case allowing the order to be given without consent, the judge warned that it
would “be wrong to utilise this provision as a means of avoiding the need to take all
reasonable steps to attain the woman’s consent” but concluded that in these
circumstances all reasonable steps had been taken by the applicants.23
16
At [24].
17
Re L (A Minor), above n 11.
18
At [10].
19
See In the matter of X and Y (Children) [2011] EWHC 3147 a more recent case which
retrospectively allowed the illegal surrogacy payment.
20
D, L (Minors) (Surrogacy) and in the Matter of Human Fertilisation and Embryology Act 2008
[2012] EWHC 2631 (Fam).
21
The Director of the clinic went so far as sending the applicants “a DHL package…containing a
single sheet of paper on which was printed an obscene gesture.” See [11].
22
At [25]. The court drew on analysis given by Baroness Hale of Richmond in Re G (Children)
[2006] UKHL at [33]-[35], describing the act of carrying and giving birth to a baby as one of
‘the most important relationships in life’.
23
D, L (Minors) (Surrogacy), above n 20, at [30].
7
3.6. The Goldberg Twins24
Mr Goldberg and Mr Angel, a gay couple from Israel, arranged a surrogacy in India
using a donated egg and Mr Goldberg’s sperm. Israel allows surrogacy but does not
allow gay couples to be parents under surrogacy arrangements.
When Goldberg and Angel’s surrogacy resulted in the birth of twin boys, they found
themselves stranded in India after the Jerusalem Family Court refused to allow a
paternity test to initiate the process for gaining Israeli citizenship for the twins.
The issue was debated in the Israeli Parliament and, with the support of Prime
Minister Benjamin Netanyahu, the case was appealed to the Jerusalem District Court
where it was accepted that it would be in the best interests of the children to allow the
paternity test to go ahead. The DNA test confirmed that Mr Goldberg was the boys’
biological father and so they were able to gain Israeli passports and travel to Israel
after spending the first three months of their lives in India.
3.7. The Mennesson Case25
A French couple, the Mennessons, paid a surrogate in California USD10,000 to carry
their twin daughters, who had been conceived using Mr Mennesson’s sperm and the
egg of a friend. The twins were issued with United States birth certificates stating that
the Mennessons were their parents.
The Mennessons were able to use these birth certificates to travel back to France with
the twins, but spent the following ten years battling in court to be recognized as the
twins’ parents and for the girls to gain French citizenship. In 2010 the Cour D'Appel
(the French Court of Appeal) recognised the Mennessons as the twins’ legal parents.
However, because surrogacy is illegal in France, they refused to add the children’s
names to the National Registrar, which would make them French citizens. The
decision of the Cour D'Appel was upheld by the Cour de Cassation (the French
Supreme Court).
The court did not accept the Mennessons’ lawyer’s arguments that the needs of the
children should prevail, meaning that the children do not have French citizenship and
so cannot access free healthcare and education in France. When they reach the age of
majority they will not legally be able to live, vote or work in France or Europe.
3.8. The Volden Case26
A single Norwegian woman, Ms Volden, approached an Indian fertility clinic in 2009,
which assisted her in choosing an anonymous Scandinavian sperm donor and an
Indian egg donor. A pregnancy hosted by an Indian surrogate mother resulted in twin
boys.
India accepted Ms Volden as the legal mother and would not allow the children to
become Indian citizens. However authorities in Norway, where surrogacy is illegal,
rejected Ms Volden’s request for travel documents for the twins after mandatory
DNA tests established that she was not biologically related to them. Norwegian
24
Anil Malhotra and Ranjit Malhotra, above n 3, at 33.
25
Cass. Civ. 1ère, 6 avril 2011 M. X, Mme Y agissant en qualité de représentants légaux de leurs
enfants mineurs Z et AX Arrêt n° 370 (10-19.053). Available at <www.courdecassation.fr/>.
26
See generally Sumitra Deb Roy “Stateless Twins Live in Limbo” The Times of India (online ed,
India, 2 February 2011).
8
authorities would not grant the twins citizenship without Norwegian maternity or
paternity being established and they have turned down Volden’s requests to adopt the
twins. As of 2011, Volden is living in India with the stateless twins, trying to raise
money to pursue further legal action to bring the twins back to Norway.
3.9. The Canadian Twins Case27
In 2005, a Canadian couple commissioned a surrogate pregnancy in India using the
husband’s sperm and a donated egg. Twins, a boy and a girl, were born in 2006 and
the couple applied for proof of Canadian citizenship at the Canadian High
Commission in New Delhi. Surrogate children are usually granted Canadian
citizenship so long as the child has a genetic link to one Canadian parent.
DNA tests confirmed the couple’s baby girl was the genetic daughter of the
commissioning father, however the baby boy was not, suggesting a mix up at the
clinic. There were no policies in place for the Canadian authorities to deal with such a
situation so the family had to stay in India until 2011, when a citizen card was issued
to the female twin and travel papers to the male. From Canada, the couple was able to
file an application on humanitarian and compassionate grounds for their nonbiological son to gain Canadian citizenship.
4.
The Surrogacy Contract
The above cases suggest that surrogacy contracts are unenforceable in relation to
establishing parenthood. The question is whether they will be enforceable in other
scenarios. There have been few known cases in international surrogacy where a
surrogate mother has refused to give up the child she gives birth to. This may be
because of the large sums of money at stake and the fact that surrogates rarely have a
genetic relationship with the child. Whether or not commissioning parents would be
able to enforce an agreement to hand over a child would probably depend on the
jurisdiction where the birth took place. With the exception of the lower court’s ruling
in the Balaz case,28 Indian courts and authorities generally seem reluctant to grant
surrogate children Indian citizenship. With the lack of regulation around commercial
surrogacy and the Supreme Court’s ruling that commercial surrogacy is legal, it is
likely that freedom of contract rules found in the Indian Contract Act 1872 would
allow a surrogacy agreement to be enforced if a surrogate refused to give up a child.
There are other questions in relation to the enforceability of surrogacy contracts. Can
the couple be forced to care for the child if they no longer want the child?29 What if
the commissioning parents will not or cannot pay the full amount for the surrogacy
they have commissioned? Does this mean the child will be kept from them and then
who will care for him or her? Can a commissioning couple force a surrogate to have a
medical procedure against her will, such as an abortion or a caesarean section because
it is stated or implied in the surrogacy agreement? To what extent can a
commissioning couple control a surrogate’s lifestyle, for example forcing her to stop
work or exercise or move away from her family to a supervised area?
27
Raveena Aulakh “After Six Years and Fertility Mix-up, Surrogate Twin Can Come Home” The
Star (online ed, Canada, 5 May 2011).
28
Jan Balaz v Anand Municipality, above n 9.
29
Such as for example the commissioning mother of baby Manji in Baby Manji Yamada v Union
of India and Another, above n 10.
9
One case involving some of these issues did occur in 2001, suggesting that in reality
contractual details are difficult to enforce in situations as emotional and complicated
as bringing children into the world.
4.1. The Beasley Case30
A British woman named Helen Beasley agreed to be paid $20,000 to be a surrogate
mother for a Californian couple, Charles Wheeler and Martha Berman. Beasley
became pregnant with an embryo created from Wheeler’s sperm and a donated egg.
One of the clauses of the parties’ detailed surrogacy agreement stipulated that Beasley
would abort any additional foetuses if she had a multiple pregnancy. Beasley alleged
that she had an oral agreement with the couple that no abortion would take place after
twelve weeks of gestation. Beasley, Wheeler and Berman were informed in the eighth
week of Beasley’s pregnancy that she was carrying twins, however Wheeler and
Berman did not discuss her getting an abortion until she was 13 weeks pregnant.
Beasley felt it was morally wrong to terminate a foetus at that stage of the pregnancy
and was concerned about the risk a termination would have on the remaining foetus.
Wheeler and Berman refused to accept Beasley’s decision and told her she would
have to terminate one foetus as requested or they would refuse to accept two babies.
Because they didn’t want to separate the babies, they told Beasley that both children
would be her responsibility and she would not get paid. As had been agreed, Beasley
moved temporarily to California, where she would not be considered the legal mother
of the twins, which she would have been in the UK. Beasley could not afford to raise
two more children and did not want to keep the twins. However, the fact that she
would not be the twins’ mother meant that she would not be able to put them up for
adoption, leaving the babies with no parents willing to take care of them.
After Wheeler and Berman asked Beasley for $80 000 in expenses for allegedly
breaking their contract, Beasley filed a civil lawsuit asking for damages for emotional
distress and breach of contract. At the same time, she filed in the family court for
Wheeler and Berman’s parental rights to be revoked so that she could put the twins up
for adoption. The twins were eventually adopted by another couple. The Californian
court ordered Wheeler and Berman to pay Beasley USD 6,500.31
5.
Rights of Surrogate Mothers and Children Born Via Surrogacy
The moral issues surrounding surrogacy have implications for human rights law. With
the lack of regulation currently found in states such as India, surrogate mothers risk
being exploited. Their lack of legal or medical knowledge and the fact they are being
offered sums of money that to them seem huge, make it difficult for surrogates to
have equal bargaining power against the comparatively wealthy and powerful clinics
and commissioning parents they contract with. While those parties have an inventive
towards ensuring that the surrogate conceives and bears a healthy pregnancy for nine
months, they do not necessarily have any need to protect the longer-term physical and
mental health of the surrogate mother.
Pregnancy and childbirth can be risky and can result in serious medical consequences
or even death. Furthermore, the mental elements of bearing a child for someone else
30
See generally Catherine London “Advancing a Surrogate Focused Model of Gestational
Contracts” 18 Cardozo J L & Gender 391.
31
At 391.
10
cannot be taken lightly. In the documentary Google Baby,32 a surrogate is filmed
crying after giving birth to the baby and other surrogates mention that giving up a
baby was the hardest thing they have had to do.33 While some surrogates may not
experience intense emotional attachment to the baby the are giving up, some have
argued that informed consent for surrogacy is difficult to attain when a woman does
not know how she will feel upon the end of her pregnancy and that women are not
fully counselled through this process.
Other surrogates have reported feeling as though their body belongs to someone else.
Before and during the surrogacy process a woman may have little medical and
reproductive autonomy. For these reasons, both courts involved in the Balaz case,34
expressed concern about the possible exploitation of Indian women through
surrogacy. Some commentators have gone as far as to call international commercial
surrogacy “reproductive trafficking”35 because “it creates a national and international
traffic in women in which women become moveable property, objects of the
reproductive exchange and brokered by go-betweens mainly serving the buyer.”36
For children born through surrogacy, it is often assumed that so long as their
commissioning parents can gain custody of the child and provide the child with
citizenship, there are no issues in relation to the child’s welfare. However, even when
not genetically related to a surrogate mother, a biological (although not genetic)
relationship exists between a foetus and its gestating mother.37 The nine months spent
in the womb may create the beginnings of an attachment bond and be a factor in a
child’s identity. As has been recognized by the United Nations Convention on the
Rights of the Child, a child has a right to know and understand its history and identity.
This is particularly relevant to children born of surrogacy given many of these
children have anonymous donors as one or both genetic parents. This lack of medical
and personal history will represent a loss to most children, which may be heightened
in cases where the genetic donor shares a different ethnic background to the family in
which the child is raised.
Children born via surrogacy may feel commodified by the way in which they were
brought in to the world. One nearly eighteen year old boy born via surrogacy wrote
“How do you think we feel about being created specifically to be given away? ... I
don’t care why my parents or my mother did this. It looks to me like I was bought and
sold.” 38
Given the commercial nature of international surrogacy and the high value society
places on bearing children and motherhood, the ethical implications of surrogacy
arrangements remain highly controversial. Analysing these ethical considerations
through a feminist paradigm is a useful method for examining many of these moral
32
Zippi Brand Frank Google Baby (HBO Documentary Films, Israel, 2009).
33
Usha Rengachary Smerdon, above n 6 at 57.
34
Jan Balaz v Anand Municipality, above n 9.
35
Usha Rengachary Smerdon, above n 6 at 51.
36
At 51.
37
At 55.
38
At 60.
11
dilemmas, particularly as many of the issues raised relate to the harms to and freedom
of the surrogate mothers.
Two contrasting positions on the subject can be delineated from feminist theory,
which reflect the divides within feminism itself. The first approach derives from the
gender-neutral/anti-differentiation school of feminism and rejects the notion that
woman should receive different treatment to men. This can be aligned to the prosurrogacy feminist argument that reproductive autonomy and the right to enter into
contracts are paternalistically curtailed by anti-surrogacy laws, and female freedom is
thereby restricted. The opposing view, based on the anti-subordination approach that
accepts power differentials within society and the redistribution of power to promote
gender equality, supports anti-surrogacy laws in order to prevent the harms it sees
commercial surrogacy as causing to the women involved.39
5.1. Commodification of Women
One of the main concerns focuses on the alleged commodification of women that
occurs when their reproductive capacity is placed into the economic marketplace.
This is because the removal of the physical act of childbearing from the notion of
motherhood treats women as “objects of reproductive exchange”40 by effectively
“renting” wombs and devaluing childbearing. Some liken commercial surrogacy to
prostitution as payment “induces women to consent to bodily intrusion.”41 Others
argue that commodification only occurs when something is reduced purely to its
monetary features, and that it is simplistic to say all commercial surrogacy entails
this.42 It also denies the free choice of women to make such decisions regarding their
own reproductive capacities.
5.2. Exploitation of Surrogates
Critics of surrogacy point to the exploitation that surrogates may be subject to. This is
especially true in international surrogacy arrangements where the surrogates are from
poor backgrounds. When women can earn up to ten times their husbands’ annual
income from one surrogate pregnancy (as can occur in India) there may be pressure
exerted on women by family members or harsh socio-economic circumstances to
consent to a surrogacy. Many surrogates come from poor backgrounds and provide
countless stories of agreeing to surrogacy in order to pay for family medical expenses,
education for their children, and adequate housing. This raises the question of whether
they are really exercising free choice in the matter, or whether a lack of economic
alternatives gives surrogates no other feasible option. Their vulnerability in these
circumstances leaves surrogates susceptible to exploitation from others who seek to
benefit from the arrangement; the surrogates’ families, the surrogacy clinics, and the
commissioning parents. Inequality in bargaining power between the wealthier
commissioning parents/clinics and the surrogates and a lack of legal and medical
knowledge by the surrogates also create conditions that may lead to exploitation.
5.3. Informed Consent
39
Catherine London, above n 30, at 403-404.
40
Usha Rengachary Smerdon, above n 6, at 51.
41
Catherine London, above n 30, at 404.
42
At 400.
12
A common argument against commercial surrogacy is that informed consent is
unobtainable, because the surrogate is unable to accurately foresee her future
emotional response to giving up the child she bore. The opposing argument is that this
denies a woman’s competence and trustworthiness to make her own reproductive
decisions in their own interests without interference.43
6. Different Approaches and Possible Solutions to the Legal Problems Created
by International Surrogacy
6.1. New Zealand’s Approach to International Surrogacy
In New Zealand, s 14 of the Human Assisted Reproductive Technology Act 2004
allows surrogacy arrangements, but holds that they are unenforceable. Like in the
United Kingdom, commercial arrangements are illegal and the surrogate is the legal
mother of the child, and the father’s status is dependent on the relationship with the
mother.44 The outright ban on commercial surrogacy in New Zealand has increased
the number of New Zealand couples looking overseas, in particular to Thailand, in
order to find surrogates. Between August 2010 and November 2012 Immigration New
Zealand reported that 18 such children were brought back into the country. 45 It is
anticipated that this may double within a year.
In order to become the legal parents of a child under New Zealand law an adoption
must take place. New Zealand is a signatory to the Hague Convention on Protection
and Co-operation in Respect of Intercountry Adoption (the Convention), which is part
of New Zealand law by virtue of the Adoption (Intercountry) Act 1997 (AIA). If the
surrogacy occurs in a country not party to that Convention, then the adoption
requirements under the Adoption Act 1955 apply.46 The children are normally
brought into New Zealand on a temporary visa while the adoption process takes place.
The AIA and the Convention apply in situations “where a child who is habitually
resident in one contracting state (“the state of origin”) has been, is being, or is to be
moved to another contracting state” either after or preceding an adoption.47 In cases
where a child born through international surrogacy has been brought back to New
Zealand for adoption, the court has tended to find that the AIA and the Convention do
not apply. This is due to findings that the child is not ‘habitually resident’ in another
state. In Re application by KR48 the court dealt with the case of a baby born to a
surrogate in Thailand from an embryo created by using the intended father’s sperm
and a donated egg. The intended parents assumed care of baby S immediately, and
upon their return to New Zealand applied to adopt S. In determining whether S was
habitually resident in Thailand, the court relied on authority that: 49
43
At 400-401.
44
Status of Children Act 1969, s 17. The legal father of the child is deemed to be the partner of the
gestational mother (surrogate) by virtue of s 18.
45
Martin Johnston “A Different Answer to That Question” New Zealand Herald (online ed,
Auckland, 3 November 2010).
46
As a signatory to the Convention, the New Zealand Government will still work in accordance
with its principals as a matter of best practice. See Internal Affairs, Child, Youth and Family
and Immigration New Zealand International Surrogacy Fact Sheet (New Zealand, June 2011).
47
Hague Convention on Protection and Co-operation in Respect of Intercountry Adoption, art 2.
48
Re application by KR [2011] NZFLR 429.
49
Punter v Secretary for Justice [2004] 2 NZLR 28 (CA) at [60]-[68].
13
... an important concept in assessing habitual residence is that of settled purpose…the
settled purpose of a young child is necessarily that of the parent or the person or
persons able to exercise the right to decide where the child should reside.
As the intention of the intended parents was always to return to New Zealand with the
child, S was held not to have been habitually resident in Thailand, and the AIA did
therefore not apply.50
Adoptions then proceed under the Adoption Act 1955. The gestational mother must
have given valid consent. Section 11 requires that:
(a) the applicants be fit and proper persons to raise children, and
(b) the adoption promotes the best interests of the child.
In such cases it will nearly always be in the best interests of the child to allow the
adoption. In Re application by KR immigration authorities had made clear that if an
adoption order was not granted S would “have to be returned to Thailand
notwithstanding that she had no identifiable parents or family connection.”51 In this
case the court said that would be “cruel and in fact quite ridiculous…it is in her
welfare and best interests to remain here in New Zealand in the special and unique
circumstances of her case.”52
A consequence of the adoption process which intended parents must pursue in New
Zealand is that the Adoption Act 1955 does not allow adoption by same sex-couples,
so unlike parental orders that have been issued in foreign jurisdictions to same-sex
couples, in New Zealand both cannot legally become the parents of the child. In Re
Application by BWS53 a same-sex couple in a civil union had two children via
surrogates in California, one from the sperm of each man and donated eggs. Their
applications to adopt were successful; although each adopted only the child they were
genetically related to. In this case the court considered the interests of the child to take
precedence over the policy concerns that the surrogacy arrangement did not sit well
with New Zealand laws on the subject.
In this case the court also discussed the implications of s 25 of the Adoption Act
1955, which prohibits payment or consideration for the adoption of a child. It
accepted the argument that the money exchanged was, in the minds of the
participants, for the egg donation and surrogacy rather than the adoption and therefore
there was no breach. However, if there was a breach this would bring criminal
sanction, but would not necessarily prevent the adoption from proceeding due to the
court’s discretion to issue orders.
6.2. Australia’s Approach to International Commercial Surrogacy
In Australia, most states allow altruistic surrogacy and state-based regimes provide
for the transfer of legal parentage in such cases through the equivalent of parental
orders. However, commercial surrogacy arrangements are illegal and New South
50
At [14].
51
At [8].
52
At [19].
53
Re Application by BWS [2011] NZFLR 621.
14
Wales,54 Queensland55 and the ACT56 have taken the additional step of making it a
criminal offence for residents of those states to enter into a commercial surrogacy
agreement internationally as well as in Australia. This has not prevented some couples
from seeking international surrogacy, and cases have arisen where the court has to
deal with the same nationality and parentage problems faced by other jurisdictions.
Section 8 of the Australian Citizenship Act 2009 enables citizenship to be granted in
surrogacy arrangements, but only in cases where legal parentage has been transferred
under the state-based surrogacy transfer laws. This would exclude international
arrangements and those where the surrogate was paid. In order to gain citizenship an
application for citizenship by descent can be made under s 16(2) of the Australian
Citizenship Act 2009. To be granted, at least one intended parent must prove a genetic
link, and it must be shown that one intended parent has legal parentage in the birth
jurisdiction, and that the birth mother has relinquished her rights. If the surrogacy was
carried out in countries that legally uphold and enforce surrogacy contracts, then this
ability to compel the birth mother to relinquish the child is a factor in favour of
granting citizenship.57 Children born in countries that do not provide for this such as
Thailand must wait for Thai passports and a visa to travel to Australia, where an
application can then be made for a parental responsibility order. While these do not
give full parental status, they will be enough for citizenship by descent once the child
is already in Australia.58
In Dudley and Anor & Chedi59 the court dealt with a case involving an Australian
couple who had twin babies born via a surrogate mother in Thailand using the sperm
of the intended father and donated eggs. They sought a parenting responsibility order
under s 65G of the Family Law Act 1975, which was issued by the court despite a
finding that no such order could be granted under Queensland’s surrogacy laws.60
Despite recognising the policy concern that the order would appear to sanction
otherwise illegal acts, the Judge found that the surrogate mother had clearly
relinquished her rights, the children need to be looked after by someone, and “the
paramount consideration for my decision about the orders sought is the best interests
of the twins.”61 However, the Judge did refer the matter to the Office of the Director
54
Surrogacy Act 2010 (NSW), s 8. This section sets the maximum penalty for individuals entering
into or offering to enter into a commercial surrogacy arrangement as 1,000 penalty units and or
two years imprisonment.
55
Surrogacy Act 2010 (Qld), s 56. This section sets the maximum penalty for entering into or
offering to enter into a commercial surrogacy arrangement as 100 penalty units or three years
imprisonment.
56
Parentage Act 2004 (ACT).
57
Which is ironic considering Australian surrogacy law is based on the explicit policy rejection of
commercial and contractual surrogacy.
58
Jenni Millbank “The New Surrogacy Parental Laws in Australia: Cautious Regulation or ’25
Brick Walls’?” [2011] Melbourne U L Rev 35 at 201-203.
59
Dudley and Anor & Chedi [2011] FamCA 502.
60
This case was decided under the Surrogate Parenthood Act 1988 (Qld), but the criminal ban on
commercial surrogacy agreements remains the same under the Surrogacy Act 2010 (Qld). The
main difference in the new legislation is that altruistic surrogacy is specifically allowed, and a
new procedure allows parentage orders to be issued in such cases. As this case was commercial
it could not satisfy the necessary requirements for an order.
61
Dudley and Anor & Chedi, above n 59, at [38].
15
of Public Prosecutions in Queensland to consider whether the couple should be
prosecuted for their actions.62
6.3. Should there be an Outright Ban on International Surrogacy?
Some commentators advocate the banning of international commercial surrogacy.
Supporters of this view argue that the harms and risks of legalising the industry are
too high, and that regulation would be insufficient to curb the harms caused or counter
the ethical implications of commercial surrogacy. While some argue that a ban would
create a black market with more negative consequences for the participants, others say
that the laws that regulate surrogacy end up promoting it, and that even if surrogacy
was driven underground “the number of surrogate arrangements would be miniscule
compared to the explosive growth that would result from permissive regulation.”63
Usha Rengachary Smerdon point to failures in the regulation of international adoption
where alleged scandals and abuses remain, and a gulf created between daily practices
and the “politically correct objectives” of the Convention. She argues that systemic
abuses of surrogates would occur on a larger scale if commercial surrogacy was
permitted, and says that:64
… unlike the arena of international adoption where the welfare of children in the
system is considered when advocating a shutdown of adoption in a particular country,
there are no existing children to consider when recommending a ban on surrogacy.
There is also the proposal that international surrogacy should be banned, but national
commercial surrogacy should be legalised to meet the demand for surrogacy
domestically. In Australia, Chief Magistrate John Pascoe proposed such a scheme,
that he argues would avoid the parentage and nationality problems international
surrogacy creates. It would also ensure that surrogacy could operate within national
regulation, which would prevent rights abuses and exploitation.65
Most commentators, however, do not think a ban would be an appropriate response to
the international demand for surrogacy arrangements, and that the harms and legal
issues that can arise would be better managed by international regulation.
6.4. Judicial Approaches
From the limited case law above concerning international surrogacy issues, there
seems to be a pattern emerging. Commonwealth courts tend to focus primarily on the
welfare of the child, meaning that normal legal requirements will be ignored in order
to ensure that a child grows up in a safe and stable home and has a right to citizenship.
France, and possibly other civil law jurisdictions such as Norway, seem more
concerned with the public policy implications of this and will allow policy
considerations to overrule what may be in the best interests of the child.
Indian courts seem to take a fairly lenient response to international surrogacy, but
because India is such a large and varied country with different states, lower regional
courts seem to occasionally take a conservative approach. Higher courts, including the
62
At [44]. As far as I am able to ascertain, no such charges were ever brought against the parents.
63
Usha Rengachary Smerdon, above n 6, at 81-83.
64
At 85.
65
Esther Han “Call to Reform Surrogacy Laws” Sydney Morning Herald (online ed, Sydney, 9
December 2012).
16
Apex and Supreme Courts, condone the practice of international surrogacy and are
prepared to recognise commissioning parents as legal parents. However, they do
express concern that the unregulated nature of the industry leaves surrogates
vulnerable to exploitation.
6.5. Legislation
Many countries have legislation banning or regulating the practice of surrogacy, but
few have legislation designed towards addressing international commercial surrogacy.
One exception is New South Wales, where the Surrogacy Act 2010 makes it illegal
for New South Wales residents to enter into a commercial surrogacy agreement,
whether that is in Australia or overseas.
In New Zealand new legislation entitled the Care of Children (Adoption and
Surrogacy Law Reform) Amendment Bill has been proposed. The Bill is currently in
the Parliamentary Members’ Bills Ballot. This Bill intends to reform both adoption
and surrogacy law in New Zealand. Importantly, in relation to surrogacy, the bill sets
out the “requirements with which a commissioning parent or parents must comply
when entering into an altruistic surrogacy arrangement, and when seeking to have that
child legally recognised as being a part of their family.” 66 These requirements include
setting out guidelines for overseas altruistic surrogacy processes that incorporate the
New Zealand adoption process. The Bill ultimately seeks to ensure the best interests
of the child are at the heart of adoption and surrogacy laws.
The proposed Bill amends the Status of Children Act 1969 to provide a prima facie
presumption as to parenthood for surrogate and adoptive parents of children born
overseas whose names have been entered into the birth registry of the overseas
country where the child was born, or when a foreign court has made a parentage order
in favour of the surrogate/adoptive parents.
Section 5 of the Status of Children Act 1969 currently states:
5
Presumptions as to parenthood
(1)
A child born to a woman during her marriage, or within 10 months after
the marriage has been dissolved by death or otherwise, shall, in the
absence of evidence to the contrary, be presumed to be the child of its
mother and her husband, or former husband, as the case may be.
(2)
Every question of fact that arises in applying subsection (1) shall be
decided on a balance of probabilities.
(3)
This section shall apply in respect of every child, whether born before or
after the commencement of this Act, and whether born in New Zealand or
not, and whether or not his father or mother has ever been domiciled in
New Zealand.
Clause 8 of the proposed Care of Children (Adoption and Surrogacy Law Reform)
Amendment Bill 2012 would add the following two subsections to s 5 of the Status of
Children Act 1969:
"5(4) If a child has been born in a foreign country, and the names of the parent
or parents for that child have been entered in a register relating to births in
that country, a certified copy of that entry purporting to be signed or
66
Proposed Care of Children (Adoption and Surrogacy Law Reform) Amendment Bill,
Explanatory Note.
17
sealed in accordance with the law of that foreign country shall be prima
facie evidence that in New Zealand, the person or persons named as the
parent or parents are the parent or parents of the child."
"5(5) If a child has been born in a foreign country, and a court or a judicial or
public authority in that country has made an order as to the parentage of
the child, a certified copy of that order purporting to be signed or sealed in
accordance with the law of that foreign country shall be prima facie
evidence that in New Zealand, the person or persons named in the order as
the parent or parents are the parent or parents of the child."
An earlier draft of the proposed Care of Children (Adoption and Surrogacy Law
Reform) Amendment Bill in New Zealand Member of Parliament (“MP”) Nikki
Kaye’s name contained the following provision regarding international commercial
surrogacy:
“224 International commercial surrogacy arrangements
“(1) For the purposes of this Act, international commercial surrogacy
arrangement is defined as any surrogacy arrangement where one or more
parties gives or receives, or agrees to give or receive, valuable
consideration for his or her participation or for any other person’s
participation, or for arranging any other person’s participation, in a
surrogacy arrangement that occurs in a country other than New Zealand.
“(2) The fact that an international commercial surrogacy arrangement has
occurred does not prevent an adoption application from being lodged.
“(3) Any adoption application made in New Zealand in respect of a child
conceived via an international commercial surrogacy arrangement must be
determined in light of the provisions of this Act.
“(4) The Court is not compelled to refuse to grant an adoption order in favour
of the adoptive parents because the child in question was conceived via an
international surrogacy arrangement.
“(5) To avoid doubt, in making its decision the Court must have regard to the
principle that the welfare and best interests of the child must be the
paramount consideration when considering an adoption application.
However, in the current version of the Care of Children (Adoption and Surrogacy
Law Reform) Amendment Bill in New Zealand MP Kevin Hague’s name this
proposed provision has unfortunately been removed. Despite commercial surrogacy
being prohibited in New Zealand, any new surrogacy legislation needs to address
what happens (particularly to the child concerned) in the international commercial
surrogacy cases that will still undoubtedly occur.
In India efforts have been made to regulate reproductive technology, with the
booming international surrogacy market in mind. The Indian Council of Medical
Research has issued guidelines to regulate clinics providing assisted reproductive
technology services.67 However, these guidelines are not legally binding, do not
include clarification on many major issues, and are often violated.68
In 2010 more concerted efforts were made to regulate surrogacy in India. A 12member committee, consisting of experts from the Ministry of Health and Family
67
National Guidelines for Accreditation, Supervision, Regulation of ART Clinics in India, 2005.
68
Anil Malhotra and Ranjit Malhotra, above n 3, at 34.
18
Welfare, the Indian Council of Medical Research, as well as other medical specialists,
drafted the Assisted Reproductive Technology (Regulation) Rules 2010. These Rules,
which are yet to be passed into law, are extremely comprehensive. They would allow
foreigners to commission a surrogacy only when they have provided proof of
registration of the intended surrogacy arrangement with their embassy. The Rules also
stipulate that a child born of surrogacy will have the commissioning parents named on
his or her birth certificate, and sets out a number of rules designed to protect the
appropriate selection, medical welfare and fair payment of surrogate mothers.
Key features of the Rules are:69
 The commissioning parents and surrogate mother must enter into a surrogacy
agreement, which will be legally enforceable;
 The surrogate must relinquish parental rights over the child;
 A surrogate must be between 21 and 45 and may not be a surrogate for more
than three live births;
 The birth certificate will bear the commissioning parents’ names as the legal
parents;
 The commissioning parents are legally bound to accept the child;
 Foreign commissioning couples must be able to provide documentation that
they will be able to take the child to another country;
Questions have arisen over how the Rules would be enforced, given the huge number
of clinics currently used to operating in a free-for-all environment, and what body
would solve any disputes under the Rules (for example, regarding payment of
surrogates or two divorced commissioning parents both seeking to take a child).
The most relevant international convention is the Hague Convention on Protection
and Co-operation in Respect of Intercountry Adoption (the Convention). However, it
was not created with surrogacy in mind and does not adequately address the unique
issues of international commercial surrogacy. In 2010 the Hague Conference on
Private International Law Special Commission on Surrogacy rejected it as the
appropriate instrument for regulating surrogacy. 70 For example, the Convention
forbids payment to the mother,71 and has a general rule against contact between and
prospective adopters and the child’s parents.72 It also provides no mechanisms for
dealing with the statelessness or parenthood issues.73 It is useful in that it provides a
relevant example of the type of regulation that can be brought about to deal with
children’s issues internationally (over 80 countries are party to its terms), and its
general principles and aims to curb child trafficking and exploitation are applicable.
69
As discussed in Usha Rengachary Smerdon, above n 6, at 42-43.
70
Permanent Bureau of the Hague Conference on Private International Law Private International
Law Issues Surrounding the Status of Children, Including Issues Arising from International
Surrogacy Arrangements (Preliminary Document Number 11, March 2011).
71
Hague Convention on Protection and Co-operation in Respect of Intercountry Adoption, art
4(c)(3).
72
Hague Convention on Protection and Co-operation in Respect of Intercountry Adoption, art 29.
73
Sarah Mortazavi “It Takes a Village to Make A Child: Creating Guidelines for International
Surrogacy” (2012) 100 Georgetown L Rev 2249 at 2254-2256.
19
While it can therefore serve as a model, a new regulatory instrument is necessary to
deal with international surrogacy.
One of the most important issues that international regulation must address is the legal
parentage of the surrogate children, as most problems appear to arise over this issue.
Sarah Mortazavi recognises three possible ways to determine this: gestational, genetic
and intent. She argues that it is the intent based method of determining parentage that
should be applied to all cases of international surrogacy.74 Mortazavi recommends a
central agency in each country be established to deal with surrogacy to provide
transparency to the process and help avoid legal issues and human rights abuses. 75
This could mirror the operation of the Convention adoption system where each
country has such an agency to oversee international adoptions.
Catherine London suggests that the appropriate regulatory method is a “surrogatefocused contract approach” rather than a family-law “welfare of the child” model.76
The family law approach taken by judiciaries applies legal parentage presumptions
rather than allowing parentage to depend upon contractual terms, which it is argued
increases certainty, reliability and promotes the interests of the parents and children.
London argues however, that:77
… any gains in certainty that are achieved by adopting a family law approach come at
the expense of women’s autonomy and freedom to contract … Enforcing these
agreements in accordance with relevant contact principles avoids perpetuating the
perception that women are incapable of rationally committing to agreements for their
own services.
7.
Conclusion
International commercial surrogacy raises many complicated legal questions. The
major challenge for authorities and courts faced with international surrogacy cases is
ensuring that the welfare of children born via surrogacy can be safeguarded while
respecting their countries’ policies and laws on surrogacy.
Both case law and legislation is limited on international commercial surrogacy at this
point, leaving a gap that will need to be filled in the future by judges, immigration
authorities, national and international lawmakers, or a total ban on international
commercial surrogacy. However, a total ban on international commercial surrogacy is
not the way to go – it will drive the problem underground and mean that exploitation
of surrogates will be more likely, and the protection of a child’s rights to his or her
identity will be severely undermined.
It is best to accept the reality that many people want to have children and that some
prospective parents will stop at nothing, including international commercial
74
At 2277.
75
At 2287. Others have also made the comparison of international surrogacy with international
adoption, but have concluded that international surrogacy could be appropriately regulated using
an international agreement, similar to the Hague Convention on International Adoption. See for
example, Katarina Trimmings and David Beaumont “International Surrogacy Agreements: An
Urgent Need for Legal Regulation at the International Level” (2011) 7 Journal of Private
International Law 627 and Erica Davis “The Rise of Gestational Surrogacy and the Pressing
Need for International Regulation” 21 Minnesota Journal of International Law 120.
76
Catherine London, above n 30, at 410.
77
At 411.
20
surrogacy, to make that happen. The evidence thus far shows that these prospective
parents really want to have, love and nurture these children despite any parentage and
immigration barriers involved.
The most crucial issues any potential international legal framework needs to address
is to ensure that surrogate mothers receive a fair payment for their services and that
their health and well being is protected. It is also essential that the child’s right to
know his or her identity, particularly his or her genetic identity, is preserved. This
becomes even more important in the future where genetic medicine may become the
dominant diagnostic tool in many healthcare systems.
In the meantime, the parentage and/or citizenship of children born via an international
surrogacy arrangement will remain a significant issue for courts and judges to contend
with. In these cases international Family Court Judges need to have the courage to put
the overriding principle in family law, namely the welfare and best interests of the
child, before the politics of the morality and legality of international surrogacy. Not to
recognise the parentage and/or citizenship of children born via international surrogacy
is to leave these children in legal limbo and to disconnect them from their
commissioning parents who seek to have, love and nurture these children.
21