Transnational Commercial Surrogacy: Contracts, Conflicts, and the Prospects of International Legal Regulation
Abstract and Keywords
With the emergence of assisted reproductive technologies, particularly in vitro fertilization, gestational surrogacy in which an woman can be hired to gestate the child of commissioning parents has grown into a multimillion dollar industry. While many countries prohibit surrogacy, others permit and some even allow women to charge for the service of gestation on a commercial basis. This article addresses the regulation of transnational surrogacy and the related legal conflicts that arise in cross-border agreements particularly in commercial contracts It starts with a brief exploration of the surrogacy industry and growth. It then goes on to describe and analyze some of the legal frameworks that affect surrogacy contracts. The article proceeds to discuss some of the most prominent cross-border controversies to highlight that these conflicts tend to arise from a lack of international or transnational regulation on parentage and citizenship. Finally, the article explores the proposals for international regulation and the prospects of solving some of the more difficult legal problems that have arisen from transnational surrogacy.
Reproductive technologies have advanced at a rapid pace in the last thirty years. That which was the stuff of science fiction in the mid-twentieth century is becoming increasingly real in the new millennium. Women who are been unable to conceive can now avail themselves of in vitro fertilization (IVF), increasing their chances of getting pregnant. And women who have viable eggs but cannot gestate can avail themselves of the services of women who can through surrogacy arrangements. Furthermore, IVF and surrogacy combined have opened the door to genetic children for same-sex couples that would otherwise have to adopt. In this brave new world, legal regulation and the rules that allocate parental rights and responsibility have constantly had to adjust and keep up with the latest technology.1 Add to this the ability to travel and outsource surrogacy to women in states with more lenient regulations of reproductive technology, inevitably the laws of intercountry adoption, transnational contracting, parentage and citizenship, and human rights are also implicated.2 At the time of this writing, there have been numerous controversies involving commissioning parents and surrogates, raising not only legal questions but also ethical ones. In spite of these conflicts and the many questions that remain to be answered about the industry, there is a growing demand for surrogacy services.3
This article addresses the regulation of transnational commercial surrogacy and the related legal conflicts that arise in cross-border agreements. In Part I, the article begins with a description of the industry and its growth, drawing from examples of countries that have become the leading purveyors of commercial surrogacy. The section also describes the parties involved in transnational surrogacy and the processes involved in a commercial surrogacy agreement. Part II explores some of the approaches to domestic regulation of commercial surrogacy, describing both the background rules and the reliance on contract law that currently prevail. These rules can have considerable consequences for surrogacy contracts, including determining the enforceability of contract terms. Part III describes and analyzes some of the prominent cases of cross-border disputes about surrogacy that have arisen from gaps in contract law and a lacuna in matters of parentage in international family law. If a citizen of a country that bans surrogacy contracts in a country that allows it, it may present thorny legal and diplomatic problems regarding citizenship. The section also briefly touches upon the conflict between contract terms and surrogates’ civil rights, particularly with regard to contract terms that demand abortion. Finally, Part IV of the article explores the emerging regional and international legal regulations that are being formulated to address transnational surrogacy. The section explores briefly the jurisprudence of the European Court of Human Rights on matters of parentage and citizenship for children born of transnational surrogacy and also the prospects of a convention on international surrogacy currently being studied by The Hague Conference on Private International Law. Undoubtedly, an international convention would clarify many of the rules with regard to citizenship for children born of surrogacy agreements; however, it remains to be seen whether such an instrument is forthcoming and whether the surrogacy instrument on The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption will be used as a guide.
I. The Commercial Transnational Surrogacy
Before discussing the legal regulation of commercial surrogacy, it is important to make a few distinctions to specify the topic of this article. First, the article focuses on commercial surrogacy as opposed to altruistic surrogacy. Altruistic surrogacy, which is permitted in more countries, requires that the agreement to perform surrogacy comes from a philanthropic impulse. The surrogate donates her services to help the infertile couple to a genetic family.4 In return, the intended parent(s) gives the surrogate the costs of carrying the child, including paying for health care, days off work, living expenses, and necessities. States that only permit altruistic surrogacy do not allow the surrogate to charge for her services. Commercial surrogacy, on the other hand, covers many of these expenses while also paying the surrogate for her services as a gestator.
Second, there are a number of medical forms of surrogacy. In traditional surrogacy, the gestational mother is also a genetic mother through the donation of her ova. Such a surrogate who both donates her ova and gestates the child and is artificially inseminated with the father’s sperm would have a genetic link to the child and, in the past, such a link has given rise to claims of legal motherhood.5 More recently, there has been a shift from traditional to gestational surrogacy in which the intending parent(s) donate either or both egg and sperm or receive donated eggs and/or sperm.6 The ovum is fertilized and then implanted into the surrogate’s womb. Given the advances in reproductive technologies along with the recognition of same-sex families, the lack of a genetic connection alone does not prevent all parental claims; nevertheless, the separation of egg donation from gestation is increasingly seen as a means of making a claim of legal motherhood more difficult.7 This article will not explore the bioethical or medical dimensions of surrogacy. It is not concerned so much with the medical form that surrogacy takes but rather the legal arrangements that bring hopeful parents, clinics, and surrogates into a relationship and the consequences of such arrangements.
a. Producing a Child: The Clinic, the Commissioning Parent(s), the Surrogate, and the Contract
While statistics of the number of surrogacies in any given country are hard to find, it is safe to say that with the tightening of transnational adoption and the advances in medicine, there has been a rise in demand for surrogacy in general.8 However, very few countries permit commercial surrogacy, while more permit altruistic surrogacy. At the time of this writing, India, Israel, Nepal, Mexico, Russia, Thailand, the Ukraine, Venezuela, and some states in the United States permit commercial surrogacy.9 Some of these states, reacting to high-profile controversies, have recently enacted bans on transnational surrogacy but allow commercial surrogacy for domestic commissioning parents.10 In short, while surrogacy itself may be more widespread than ever before, its commercial form is not, and even in the few countries that permit payment for surrogacy, in some of these, transnational contracts are prohibited (Nepal, Thailand, and most recently India).11
India is perhaps the most well known of the countries in which commercial surrogacy has flourished. Because it has been in the business longer than many other countries and so much is known about it, a brief description of India’s practices can shed light on other markets even if the recent ban on transnational surrogacy holds. India’s surrogacy market is valued at over $2 billion, with a large number of commissioning parents coming from overseas (until the 2015 ban) but also with a robust domestic demand for services.12 According to some reports, approximately 25,000 children have been born from surrogacy since 2002, and there are more than 350 facilities providing services.13 In almost every state permitting commercial surrogacy, the clinic is the first point of contact for commissioning parents. The clinic then finds a surrogate to provide the gestational service. In India, the clinics, like the famous Akanksha Infertility Clinic in Gujarat, also draw up the contract, receive the payment from commissioning parents, perform the medical procedures, and monitor and regulate the surrogate in its hostels. The surrogates are identified by brokers who often go to villages and seek candidates through word of mouth or by advertising. The brokers are paid a fee for bringing in surrogates. Once the surrogate has been cleared by the clinic, she enters into a contract drawn up by the clinic.14 The central and perhaps most important aspect of the contract is that the surrogate has no parental rights to the child. Further, the surrogate must agree to necessary medical procedures such as reductions in fetuses and a caesarian delivery.15 In India, the problem of widespread illiteracy gives rise to questions about the procedural fairness of the contract.16 Some have argued that some surrogates might not be fully informed of the expectations before contracting, making them vulnerable to exploitation by the savvier parties to the agreement.17 In terms of compensation, Indian surrogates can earn several thousand dollars for a surrogacy (anywhere from $2000 to $8000 is normal). This represents several years of wage earnings, often providing enough capital to purchase land and a house and to pay for schooling for the surrogate’s children. As such, while there may be exploitation, the monetary compensation is substantial in context.18
In the United States, compensated surrogacy is allowed in a small number of states, and these are attracting more foreign commissioning parents.19 While in India the clinics are the primary contacts for arranging both legal and medical requirements for surrogacy, in the United States, firms that specialize in surrogacy can be used to locate surrogates, coordinate the contract with the parents, including legal representation for the surrogates, and also to coordinate with the IVF clinic that will provide the medical services. In other words, these businesses act as brokers for both commissioning parents and surrogates. According to the information provided by some of these firms, the contracts between surrogates and commissioning parents are negotiated individually with legal representation on both sides. For their services, surrogates can expect to be compensated between $30,000 and $40,000, depending on a number of factors.20 In addition, the surrogate will also be compensated for other expenses. The cost of surrogacy, as a result, can exceed $150,000.21 In spite of the expense of surrogacy in the United States, recent reports suggest that it has increasingly become a destination for commissioning parents from Europe and China.22 There are many reasons why the United States might be a preferred country for transnational surrogacy: it has the medical resources to ensure proper care, and its legal system and background laws make it safer than states which are less predictable. In particular, a number of U.S. jurisdictions have upheld surrogacy contracts, and the very construct of “family” in the United States has been more liberal. With judgments like Baby M, Johnson v. Calvert, and K.M. v. E.G., courts have upheld the parental rights of intending parents over the surrogate.23
It is important to note that in both commercial and altruistic surrogacy, the parties, the processes, and the laws regulating citizenship and parentage of a child are the same.24 The key difference is how the payment for surrogacy services is distributed. In a commercial surrogacy arrangement, the surrogate may charge for her services in addition to her costs. However, in an altruistic surrogacy arrangement, the surrogate may only recoup costs incurred and presumably enters an agreement to perform the services out of a philanthropic impulse. States that allow only altruistic surrogacy normatively eschew the commodification of women’s reproductive capacity involved in commercial surrogacy, but the distinction between the two is “neither self-evident nor natural.”25 In the following section, I discuss some of the regulatory approaches to commercial surrogacy and the difficulty of regulating a practice that is at once intensely private as well as a commercial undertaking. In the next part, I discuss the more salient aspects of the domestic regulation of surrogacy. Because there are currently no transnational laws governing surrogacy, the national laws of contract and the background rules of the jurisdiction in which the agreement is entered into are often the only laws that apply. This leaves some important and increasingly serious gaps that cannot be resolved via contract. This problem is taken up in Part III.
II. Domestic Regulation of Surrogacy
Every country that either bans or permits surrogacy in any form regulates it. A total ban like that enacted by many European countries results in the regulation of surrogacy by the state through denial of family status and most often citizenship and through criminal law prosecutions or fines.26 In states that permit surrogacy, the main difference normatively is between altruistic surrogacy states and commercial surrogacy states. In states that allow altruistic surrogacy, the regulation of the agreement, the rights and responsibilities of the surrogate and the commissioning family, and the regulation of the medical processes and providers may be very similar to those states that allow commercial surrogacy.27 The difference then boils down practically to the regulation of payment. In other words, where surrogacy is permitted, regardless of its commercialization, the regulatory frameworks may be very similar. There may be rigorous regulation in which the state takes an active interest from the contracting stage onward and, at the other end of the spectrum, there may be very little interest in regulating the process. Wherever the state may fall on the regulatory spectrum, there are laws that define the boundaries of practice domestically.
Popular assumptions often found in the press that states like India are regulatory black holes or the “wild East” where anything goes do not reflect legal reality. Even in such a state, at the very minimum, surrogacy requires a contract. Consequently, the common law of contract provides a floor for the regulation of surrogacy even if it is inadequate to the task of settling all controversies that might arise. Furthermore, the parties do not contract in a legal vacuum. There are other legal regimes that intersect and overlap to delineate how the contract will be interpreted and what rights will be enforced. Guarantees of gender rights, reproductive rights, and privacy come into play, creating limits to contract. Intersecting with these fundamental or civil rights, political rights such as citizenship and family law that bestows kinship status are also implicated. In addition, other less obvious legal regimes might also be relevant, such as the regulation of medical providers and the regulation of surrogacy’s medical processes. Thus even in a state with very little regulation in which the courts are involved only when there is a disagreement or claim of breach, there are layers of laws at work. On the other hand, states like Israel, which permits domestic commercial surrogacy, take a much more active role in regulating surrogacy through statutory law, judicial oversight, and state involvement throughout the process.28 While it is beyond the scope of this article to explore all the legal regimes that act to regulate surrogacy in every jurisdiction, below is a discussion of the background laws and contract framework drawn from some of the better known countries now providing surrogacy. Understanding the multifaceted laws that come into play is indispensable to crafting responsive regulation to better respond to concerns about human rights and exploitation even if they do not resolve the transnational parentage issues. Given that some states have expressed reluctance to loosen their stance on recognition of children born from commercial surrogacy because of these human rights concerns, it makes sense to improve conditions to improve the likelihood of transnational comity.29
a. National Laws and Background Rules
Every state guarantees its citizens basic rights and liberties, many of which cannot be infringed upon by the government. In addition, as part of the social and political contract, the state also protects citizens from the unlawful acts of other citizens. These are the background rules or the shadow of the law in which surrogacy agreements are bargained for and struck. These rules may determine whether a contract is valid and how the terms are to be interpreted and enforced. Quite apart from their bearing on contracts, the rules provide minimum rights to contracting parties guaranteed by the state. Some of these rights can be voluntarily given up, but it may also be in the state’s interest to disallow such abrogation. In the past thirty years, many states have reformed their laws to encompass greater levels of gender equality, broader conceptions of family, and more robust protections for reproductive rights.30 International articulations of human rights have also provided the bases for challenging interventions by the state and the demands for redress when violations occur.31 While these background rules are not explicitly discussed, they may have important effects on surrogacy agreements when controversies arise and may provide or remove protections for surrogates as well as commissioning families.
Gender roles and the rights of women to make decisions about their well-being and future have a profound bearing on surrogacy.32 Historically, many women could not enter into contracts for themselves; further, they were often considered the responsibility of a male guardian: father or husband; and most professions were closed to them.33 While some states continue to deny women rights and opportunities based on gender, many other states have made progress. For instance, in the United States, one can rely on the courts to enforce agreements regardless of the gender of the contracting party. Women may enter into surrogacy agreements without regard to their marital status.34 Women may pass on citizenship to their child regardless of the citizenship of the father.35 Single women’s children are afforded the same rights as those of married women.36 And most important, women can exercise their right to reproductive choice to become a parent, to terminate a pregnancy, or to not parent at all. More recently, same-sex families have been given the same protections and status as heterosexual families through the recognition of same-sex marriage.37
In other states, differing levels of protection and rights might constrain surrogacy. For example, in states that constrain or prohibit abortion like a large number of Latin American countries, women who enter surrogacy agreements may not be able to withdraw from them if their circumstances change, regardless of the wishes of any of the parties.38 On the other hand, where abortion is a constitutional right, commissioning families cannot enforce terms that prohibit the surrogate’s rights in this regard even if the terms are agreed to initially by all parties. Similarly, countries that have strong privacy protections may prevent commissioning parents and clinics from enforcing terms that require a surrogate to submit to particular forms of testing or to invasive procedures.39
In addition, a state that prohibits some groups of women—married women, single women, or women of a specified age—from becoming surrogates will likely invalidate any agreement between commissioning parents and an ineligible surrogate. A state that does not allow a parent to pass on citizenship except to genetic children may limit parents from engaging in surrogacy. States that do not recognize same-sex partners or families prevent those couples from enforcing surrogacy agreements even if they are able to contract for the services.40
In sum, the rights afforded to surrogates like those regarding abortion, privacy, and autonomy in medical decision-making may limit the enforceability of some contract terms. While such rules may not result in fair contracts, they do provide limits to what parties can be made to do. For example, while a surrogate may be required to abort a child that may have tested positive for birth defects by the terms of the contract, commissioning parents cannot enforce these terms. Nor can they force a surrogate to carry a child to term if she decides to terminate the pregnancy.41 In assessing or proposing the regulation of commercial surrogacy, therefore, it is important to consider these frameworks that make up the broader legal context.
b. National Contract Law
In a number of states, as has been mentioned above, the primary regulation of commercial surrogacy is through contractual agreements. Ideally, contracts allow for the parties to negotiate an agreement that best reflects their intentions and expectations. Some scholars have argued that contract law is sufficient for the purposes of protecting parties to a surrogacy agreement, and many states have defaulted to regulating through contract primarily because they have not legislated any other form of regulation.42 However, there are some important considerations that must be kept in mind. For transnational agreements, there may be concerns regarding the process of contract formation and the ability of surrogates to enforce terms. The vast majority of surrogacy contracts do not involve claims of contract breach and are completed without difficulty. But where conflicts do arise, the specter of exploitation also looms.43 As such, regulating contracts and contract enforcement to ensure fairness potentially reduces both domestic and transnational controversies. Yet, particularly in transnational arrangements, the increasing number of problems that have arisen in states that rely on contract law also suggest more rigorous regulation is needed at the international level.
One of the troubling aspects of contracting for transnational commercial surrogacy is the assumption that the contracting parties are in relatively equal bargaining positions. While entering into surrogacy is a choice for all sides, in order for the bargain to be fair, there must be adequate disclosure of the terms and informed consent.44 Where the surrogate is un- or undereducated, questions about her power to negotiate and the potential for exploitation arise. In the United States, some surrogacy agencies require the commissioning parents to pay for independent legal counsel for the surrogate.45 In India, studies have revealed that surrogacy contracts may be in English, a language that may not be understood by the surrogate. The clinic that brokers the surrogacy translates the contract for the surrogate who is not independently represented.46 Such agreements begin to resemble contracts of adhesion in which the surrogate has limited bargaining power to alter the terms. While parties are rarely in an equal bargaining position in many contracts and this does not amount to unfairness per se, procedural problems in contracting like language barriers, knowledge of the one party’s educational limits, and failures to inadequately disclosure of terms exacerbate these inequalities.
Procedural defects in contracting, in turn, can lead to distributions of risks and liabilities that are one-sided. For commissioning parents, the risks are apparent: the surrogate may not be successful in the IVF process, she may breach the contract by aborting, she may jeopardize the health of the child by disregarding the health rules in the contract, and she may refuse to give up the child. Apart from the emotional burden of not having a child, the commissioning parents stand to lose only materially should the surrogate breach. The surrogate, on the other hand, faces more serious risks in terms of short- and long-term health complications, the possibility that the parents will refuse the child, and ultimately, the loss of life to the pregnancy or other medical procedures.47 Contracts that do not account for these risks shortchange the surrogate, who must then internalize these costs. In addition, if the surrogate is uneducated or unaware of her rights particularly to abortion, she may believe that she has no choice but to carry the pregnancy to term. In fact, standard form contract examples include clauses that prevent surrogates from aborting or require them to do so if the fetus tests positive for abnormalities.48
While the contract may not be able to prohibit or force abortion, what it can do is attach consequences to these decisions. In other words, contracts like this cannot enforce a remedy of specific performance, but they may demand restitution from the surrogate if she breaches. If, on the other hand, the commissioning parents breach in a transnational surrogacy contract by refusing to take the child, the surrogate may be placed in the position of having to care for the child.49 She would then have to sue parties not present in the country for damages, often a lengthy and expensive process. In the case of altruistic surrogacy, the surrogate who is paid for only her expenses may be left with few resources to care for the child. Even though commercial surrogates command more remuneration, the common practice in states like India is for the bulk of the payment (not expenses) to be disbursed after the child is born.50 Without contract terms that require escrowing of payments, commissioning parents who breach by failing to pay the final installment and refusing the child may be very difficult to reach through national courts.
Transnational surrogacy agreements tend to be undertaken by affluent commissioning parents and financially struggling surrogates.51 As such, it is important that surrogacy-providing states enact protections that ensure fairness in contracting and, as I have argued elsewhere, basic protections that ensure that surrogates who do the bulk of the difficult labor of bearing a child are not shortchanged.52 That being said, it is also clear that in transnational surrogacy agreements, problems of parentage and citizenship may arise regardless of the robustness of the contract and the fairness of the procedure. These problems require a more global approach in their resolution.
III. Contract Law’s Inadequacy in Resolving Transnational Conflicts and Legal Controversies Arising from Commercial Surrogacy
In spite of the fact that the majority of surrogacy agreements are completed without complications, these hard cases often dominate the conversation about transnational surrogacy. The few cases that have become widely known and sensationalized by international media share similarities and indicate where legal regulation is required. Below, I describe the two areas in which these cases arise. One of the most problematic aspects of transnational surrogacy stems conflicting national legal rules on parentage that then complicates matters of citizenship, sometimes resulting in the strange eventuality of a child not having legal parents or citizenship in any country. While generally these issues have been worked out, the fact that courts have had to make such determinations on a case-by-case basis indicates that international lawmaking in this area is required. Furthermore, because contract law has been the primary vehicle by which surrogacy has been regulated and it is axiomatic that no contract can account for every eventuality, some conflicts among parties have arisen from the gaps or silences in surrogacy contracts or from the clash of competing rights. In the following subsections, I describe and analyze three exemplary cases to illustrate these problems. I take up the issue of specific regulation of surrogacy and the proposed international regulation in Part IV, which discusses regional efforts in the European Union and the possible promulgation of an international convention by The Hague Convention on Private International Law addressing the legal issues that attend transnational surrogacy.
a. Contract Claims vs. Individual Rights
i. Baby Gammy
The Thai case of Baby Gammy presents an example of the conflicts that can arise between contract law and individual rights when the state relies on contract law as the regulatory framework for surrogacy. In this case, an Australian couple entered into a surrogacy contract with a Thai surrogate mother. Ms. Pattaramon was carrying twins, of which one child was discovered through prenatal testing to have Downs Syndrome.53 The commissioning parents, David and Wendy Farnell, demanded that the fetus with the anomalies be aborted, which the surrogate refused.54 The couple in turn refused to take Gammy and left with his sister. According to some reports, the Farnells also asked for a refund for the child they refused to accept.55 In a similar domestic case, a commissioning father in the United States asked his surrogate to reduce the number of fetuses she was carrying because he was concerned about his financial ability to care for three children.56 However, the surrogate, Melissa Cook, refused because she was pro-life and did not want to abort a healthy fetus. The surrogate subsequently demanded to have legal recognition as the mother of the children and immunity from future lawsuits.57
The Baby Gammy case does not implicate the thorniest transnational issues of citizenship or parentage, but it, along with cases like Cook’s, exposes the tensions which may arise when contract law conflicts with individual reproductive rights or civil liberties. Contracts that abrogate the right to refuse medical procedures or to carry to term or terminate a pregnancy may be unenforceable; however, if the exercise of these rights triggers contract remedies in the form of monetary damages, surrogates may very well be left with no practical choice but to perform according to the terms of the contract.58 Doctrinal defenses to contract performance, like fraud, duress, or unconscionability, are rarely successful, and even if they were to succeed in surrogacy contract cases, it is unlikely that the surrogate would be able to keep all or most of the contract price, posing a financial hardship and disincentivizing the exercise of her rights.59 Transnationally, these conflicts raise questions about human rights and exploitation of vulnerable surrogates. While it is certainly not settled that surrogacy violates human rights per se, and exploitation is not a given in surrogacy, regulation of these agreements, keeping in mind human rights obligations particularly with regard to women’s reproductive rights and privacy, is an important consideration.60 Without adequate regulation, and as more countries with similar regulatory frameworks enter the transnational surrogacy market, it is likely that we will see more disputes of this nature.
b. Parentage and Citizenship
i. Baby Manji
In general, the statutory family law of a state determines the legal status of a child and a parent. In many countries, parentage is determined by biological descent, adoption, or through common law presumptions like the marital presumption or through adjudication. As described above, these laws are the background on which surrogacy contracts are negotiated and performed. If those rules do not account for the advances in reproductive technology and states have conflicting laws, it may result in limping parentage where the jurisdictions involved recognize different people as legal parents.61 Because citizenship is tied to parentage, uncertainty about the legal parent may also result in difficulties in settling citizenship. The Indian case of Baby Manji is an example of how transnational surrogacy agreements between parties in jurisdictions with conflicting rules about legal parentage can result in at least temporarily stateless babies.62 In this case, a Japanese couple, Ikefumi and Yuki Yamada, entered into a contract for surrogacy at the Akanksha Infertility Clinic in Gujarat, India, in November 2007.63 Per the standard contract provided by the clinic, the surrogate relinquished all her legal rights to the child, providing gestation only. The Yamadas received an egg donation from an anonymous Indian donor. The child was, therefore, the genetic offspring of the Japanese father but had no biological connection to the intended mother.
Eight months into the surrogacy, the Yamadas divorced, with the intended mother no longer willing to take the child.64 Yuki Yamada refused to travel to India, leaving her husband to make the journey alone to take responsibility for the child. The egg donor had no responsibilities to the child, neither did the surrogate after the birth, and because the contract was not binding as to legal parentage, Manji Yamada, the child, was left with no legal mother in India.65 To complicate matters, when the father attempted to obtain papers for Manji’s travel to Japan, the consulate refused to issue the requisite documents because the only mother recognized by the Japanese Civil Code is the birth mother.66 The code does not recognize children born of surrogacy. And because the surrogate was an Indian, Manji was not entitled to a Japanese passport. The alternative seemed to be an application for an Indian passport. However, the Indian authorities require a birth certificate which records both the mother and father. Given that Manji’s mother was legally indeterminate, the Municipal Council of Anand in Gujarat refused to issue Manji a birth certificate.67
Mr. Yamada retained legal counsel and appealed to the Indian government to recognize Ikefumi as Manji’s father and Manji’s right to live with her Japanese family.68 The Indian government issued a birth certificate with Ikefumi Yamada shown as father and an application for travel documents to Japan. To complicate matters, a nongovernmental organization accused the clinic of child trafficking and tried to prevent Manji from being removed from India. The case reached the Supreme Court of India, which eventually dismissed the trafficking claim. However, it demanded that the Solicitor General of India clarify India’s position regarding parentage and citizenship.69 Some four months later, the Indian government gave Manji Yamada the requisite documentation to obtain a visa for Japan. Japan gave her a one-year visa on humanitarian grounds. Ikefumi Yamada would then have to establish his paternity in Japan.70 The lack of a clearly defined legal mother in India and the rules determining the birth mother as the legal mother in Japan worked to create a lacuna that prevented Manji Yamada from being either an Indian citizen or a Japanese citizen. Furthermore, while India did finally recognize Ikefumi as Manji’s biological father, Japan did not recognize him as the legal father because of the surrogacy agreement. It took three months and a trip to the Supreme Court of India to settle these issues to the point that Mr. Yamada and his mother could leave India with the child, which they did in October 2008.71
ii. The Balaz Twins
The legal dispute arising from the surrogacy agreement in the Balaz case once again involves the Akanksha Infertility Clinic and conflicting rules between India and Germany. Germany explicitly bans all forms of surrogacy.72 Furthermore, Germany does not acknowledge children born through the process even if there is a genetic link to the commissioning parents. In the Balaz twins’ case, the commissioning couple were similarly faced with problems obtaining travel documents for the children. The Anand Municipal Registrar, the authority recording births, entered the commissioning mother as the children’s mother.73 However, Susan Lohle, the intended mother, had no genetic ties to the children. Hospital records showed the surrogate mother as the birth mother. The German consulate rejected the birth certificate on the basis that Germany does not recognize surrogacy.74 Rather, the surrogate and her husband were recognized as the legal parents.75 The children were, therefore, eligible for Indian citizenship according to German law, and Jan Balaz, the genetic and intended father, was unable to pass on German citizenship. However, India requires that one parent be an Indian citizen for the child to obtain Indian citizenship. The commissioning parents recognized by India as the legal parents were both German. The children, in the eyes of India, had no Indian parent and were ineligible for citizenship.76 Through judicial action by the High Court of Gujrat, the children’s birth certificates were amended to name the surrogate the mother.77 This allowed for the possibility of Indian citizenship and passports. However, the central government of India intervened, questioning the validity of the children’s parentage.78 The contention between Germany and India centered on the legal recognition of parenthood. Given this impasse, the Indian and German governments cooperated to resolve the issue through the use of The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (the Adoption Convention).79 But the use of the Adoption Convention required transgressing a number of the Convention’s requirements and turning a blind eye to these irregularities.80 After two years and mounting public pressure, the Indian government issued the twins identity papers and the German government issued them visas.81
These two cases and others like them emphasize a critical problem with use of private contract law as the prime mode of surrogacy regulation. Parentage and citizenship are matters that only states can settle. They cannot be contracted for by the parties in a surrogacy arrangement. Clearly, the commissioning parents and the administrators of Akanksha Infertility Clinic had not thought through the ramifications of entering a surrogacy agreement between jurisdictions that had conflicting laws on, first, the legality of surrogacy and, second, the legal rules of parentage and consequently citizenship. For both the Yamadas and the Balazes, at the time of their departure to their home countries, it was unclear how the citizenship status of the children would be resolved. It was surmised that adoption would have to be an intermediary step to establishing legal parentage and citizenship.82 Without adequate understanding of the conflicts that may arise from cross-border agreements and without clear rules at the international level to settle these conflicts, the parents, the clinics, and the surrogates face uncertainty as to their rights and obligations, and the states are left to cobble together inelegant solutions to conflicts of law arising from differing stances on surrogacy.
c. National Reactions to Conflicts Arising from Transnational Surrogacy
As argued above, the lack of rules addressing surrogacy specifically (rather than a reliance on other laws or courts to fill in the gaps) results in greater degrees of uncertainty about the parties’ rights, the obligation of intermediaries like brokers, and the parentage and citizenship of the child. Furthermore, when scandals like Baby Gammy come to light that remind the public of the potential for subordination and exploitation and the ethical and human rights implications of surrogacy, the inadequacy of private contract law in the absence of protections for both child and surrogate are also highlighted. As a consequence of a few highly publicized scandals and the concern about exploitation, some critics have called for the outright banning of commercial surrogacy.83 Others have increasingly called for more comprehensive legislation on surrogacy, pointing to the reality that no contract can address all the aspects of surrogacy.84 But some national reactions to these problematic cases have led to protecting surrogates and contracting parties through bans of transnational agreements rather than a blanket ban on all surrogacy. Of course, a transnational ban solves the parentage and citizenship issues but leaves the exploitation of poor women and lack of protection from unfair domestic surrogacy contracts unaddressed.
For instance, in India, the state continues to be reactive rather than proactive in responding to surrogacy.85 The proposed Assisted Reproductive Technologies (Regulation) bill from 2010 is yet to be passed and is woefully inadequate to the task of protecting surrogates or commissioning parents.86 In 2014, India limited the use of surrogacy services to married heterosexual couples through a directive to its embassies to deny visas to same-sex partners or single people.87 In 2015, the Supreme Court of India called for more stringent regulation and the prevention of foreign nationals from entering surrogacy agreements in India.88 Access to these services would be only available domestically or to nonresident Indians (with the potential for transnational issues still remaining if they are dual citizens).
And in the absence of legislation, the Ministry of Health and Family Welfare has directed foreign registration offices to deny permission to non-Indian commissioning parents.89 In addition, children born from agreements entered into after the Ministry’s letter are not to be given permission to leave the country, effectively prohibiting transnational commercial surrogacy entirely.90 But the law is far from settled. Indeed, these new pronouncements without legislation by parliament have resulted in greater confusion. The Mumbai High Court suspended the law almost immediately, giving relief to the surrogacy clinics operating in Gujarat.91 And it remains to be seen whether the Indian parliament will follow the lead and restrict surrogacy to Indian married couples and only as a last-resort solution to infertility. While transnational surrogacy may have been suspended, addressing the problems arising from citizenship, domestic commercial surrogacy is allowed and remains primarily regulated through contract. As such, the procedural fairness issues and the possibility of exploitation that attend such contract remain. Furthermore, by restricting commissioning parents to resident Indians, the amount that clinics can charge will be reduced. Surrogates command a lesser share of that price, thus requiring them to bear the same risk but for less money. There has been vigorous debate over commercial surrogacy for a number of years, with some religious and women’s groups calling for a ban while the reproductive technologies industry leaders have resisted such moves.92 Others have pointed out that a blanket ban would simply drive the practice underground, endangering the health of surrogates and the children born through surrogacy.93
In 2015, Thailand restricted surrogacy in the wake of the Baby Gammy controversy and another serious scandal involving a Japanese commissioning father who contracted with multiple agencies to produce a large number of children.94 The country’s laws now ban foreigners and same-sex partners from contracting for surrogacy. The law carries a penalty of a ten-year jail sentence.95 Thai couples or those who have a Thai partner and have been married for at least three years may hire a surrogate in Thailand. Clearly, the impetus to ban transnational surrogacy has come from the scandals and legal dilemmas that have appeared regularly in the news, particularly those that arise from abandonment of children. However, restricting transnational surrogacy while making it available for domestic or nonresident citizen commissioning parents only partially addresses the problems and the critiques regarding the practice as a whole. For critics of commercial surrogacy, if the primary concern is fairness, exploitation, and commodification, a simple ban on foreign citizens and residents undertaking fertility tourism only addresses who can be commissioning parents and not the ethical, distributive, and human rights issues on which their objections are based. Moreover, a ban in one country may shift the market to a more hospitable country or give rise to unregulated grey and black markets in surrogacy.
The United States, which is also a destination for surrogacy services, has made no moves to ban the practice. States like the Mexico, Russia, and the Ukraine are also becoming destinations for reproductive services.96 For these states providing transnational surrogacy, there is always a potential that parentage and citizenship issues will arise. Short of a workable international agreement, a complete ban on transnational contracts, or a national policy to restrict surrogacy to citizens of countries that will give the child citizenship and the intended parents parental rights, few solutions to the ongoing conflicts of law exist. In the next part, I discuss the European Court of Human Rights’ jurisprudence on parentage to show the difficulties in denying recognition to families created through surrogacy. I then discuss The Hague Conference on Private International Law’s continuing work on a possible international surrogacy instrument.
IV. The Need for Regulation at the International Level
Transnational surrogacy implicates both domestic law as well as bilateral and international law. In the previous sections, I explored the domestic surrogacy regulation in some jurisdictions that have experienced high-profile troubling cases from transnational agreements. And as I have argued above, there are different gravamens in the cases that have become prominent that then indicate different resolutions. Some transnational cases arose from contracts that clashed with constitutional or fundamental rights. That is to say, even if these were transnational agreements, the source of the problem is in essence a breach of contract or a conflict between contract terms and civil liberties. These cases can be disposed of domestically through applications of national laws and prevailing contract interpretations regardless of their transnational nature.
The more well-known hard cases have arisen out of parentage and citizenship matters that cannot be contracted around. In these cases, all parties to the agreement may have performed their obligations precisely; however, the states that are the ultimate arbiters of citizenship and parental status cannot agree on these matters. These problems tend to arise after the contract is technically complete and the child(ren) and intended parents attempt to return to their domicile. To avoid the recurrence of parentage and citizenship disagreements, the states must collaborate, which can be difficult if one state has a ban on surrogacy. At the time of this writing, the ways in which states have resolved their conflicts have been ad hoc and patched together often through diplomatic negotiations or court intervention. As evidenced by the Indian cases, the municipalities, the local courts, the Supreme Court of India, the Solicitor General, and the foreign ministries of respective countries have all been involved in determining the legal parents and sometimes citizenship.97 Even if India clearly had jurisdiction to issue birth certificates and travel papers, its decisions on parentage were not in any sense final. In the two cases described above, the children were not actually given Japanese or German citizenship in spite of having a citizen parent. That determination was left to Japan and Germany after the children were habitual residents in their jurisdictions.98 Thus, India’s view was that the children were actually citizens of the country of the commissioning parents, while those countries were convinced they were Indian citizens because of the surrogate birth mother or the surrogacy ban. The result was limping status, where the two states involved recognized different people as parents and, consequently, considered the children to be citizens of the other state. These conflicts that are not resolvable without either a bilateral agreement or a binding international agreement have ramifications for parental and children’s rights and the rights that attach to families.
a. European Court of Human Rights: Resolved and Pending Cases
At the regional level, the European Court of Human Rights (ECtHR) has had occasion to determine parentage for children born of surrogacy, whose commissioning parents were citizens of states that ban the practice. In a pair of cases, Labassee v. France and Mennesson v. France, the ECtHR held that the total denial of recognition of a parent-child relationship (particularly when one of the parents was genetically a parent) violated the children’s rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.99 In Mennesson, the twins, who had been born to through surrogacy in the United States, were deemed the legal children of the commissioning parents by the United States. However, France does not recognize children born of surrogacy, and consequently, the children were not accorded the status of legal children of the Mennessons in France. Article 8 guarantees the right to respect for one’s private and family life, and the denial of such recognition was held by the ECtHR to be a violation because of the uncertainty created in the lives of the children.100 With a French father, it was unclear that they would be able to obtain citizenship through him even with their genetic ties, thereby also jeopardizing their ability to inherit from their de facto parents.101
In May 2015, the Swiss Courts denied recognition to one parent in a same-sex couple whose child was born from surrogacy in the United States.102 Again, the United States recognized the commissioning couple as the parents; however, Switzerland only recognized the genetic parent as father. Following this, in September, a Swiss court denied parental status to a heterosexual couple whose children were born through surrogacy in the United States because neither of them had genetic ties to the children.103 Once again, the differing rules in the state that provides surrogacy services and in the state of nationality and residence of the commissioning parent gave rise to uncertainty with regard to the status of children. Like Switzerland and France, some states have taken a moral position against surrogacy, but their stance goes beyond simply banning the process within their borders but also outlawing and punishing children born of the process in jurisdictions where it is legal. Those children are without any agency with regard to their birth and entirely blameless but are made to suffer for the sins of their parents, as it were. Consequently, if we are to take the rights of the child and his or her best interest seriously, the right to citizenship and a state, the right to a family, and a settled legal identity should be paramount.104 Under these circumstances, the increasing calls for greater cooperation and an international instrument is understandable. Moreover, with new states entering the surrogacy market and the rising demand for such services, the necessity of clarifying the rules of parentage and citizenship has become pressing.
b. An International Convention on Surrogacy or Parentage and Citizenship?
Since 2010, The Hague Conference on Private International Law has had an Experts’ Group examining the possibility of an instrument to address the cross-border issues arising from parentage and citizenship. It is important to note that the Experts’ Group has framed the issue broadly.105 That is to say, the problems are not only surrogacy related; uncertainties about parental status and citizenship may arise in other ways, such as birth registration, adjudication of parentage, or common law presumptions. This suggests that the instrument crafted is likely to be broader with a subset of provisions for “international surrogacy agreements” (ISA), as the working group terms it.106
With regard to ISAs, the Background Note produced for the February 2016 meeting of the Experts’ Group notes that the parentage issues that arise from these are particularly complex.107 States have not addressed parentage in this context, and the result has been a resort to the standard domestic parentage laws even if there is a transnational dimension. It is worth quoting the Background Note at length on this point:
In most States, national law does not recognise a parental status established through surrogacy in other jurisdictions, whether in the context of a foreign public document (such as a birth certificate), a foreign voluntary acknowledgment or a foreign judicial decision (pre-birth or post-birth). This is usually because surrogacy is prohibited. Where there is a permissive surrogacy framework, surrogacy arrangements for profit are usually excluded from specifically enacted domestic surrogacy laws that enable transfer of legal parentage in certain circumstances. Despite such positions, national authorities and courts have had to grapple with the claims of intending parents trying to return with a foreign-born child with whom one of the intending parents usually has a genetic link and both intending parents have a primary caregiving role, but no legal relationship.
Recognition has occurred through ad hoc liberalisation of interpretations of “parent” and “child” in particular pieces of legislation as well as an assessment of the best interests of the surrogate-born child. Where recognition has been refused, this has resulted in “limping” legal parentage, and often an asymmetry in the parental statuses between, on the one hand, an intending (genetic) father and, on the other, an intending mother (whether or not genetically related) or second parent.108
The cases discussed so far in India and Europe are examples of the problem. These ad hoc judgments have come in the wake of conflicts of law and uncertainty; they have not settled parentage issues for all cases. As the Background Note further describes, the strict application of the receiving country’s national law may disestablish parentage established by the surrogacy-providing country. This is particularly true for parentage that is established statutorily or by legal fact (registration of birth) or by tradition or presumption (acknowledgment of paternity/marital presumption). Even where a judicial decision has established parentage, public policy exceptions may prevent other states from giving such decisions comity. As such, ordinary conflicts of law methods may not work in the case of parentage issues that arise from transnational surrogacy.
It has been proposed that The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (Adoption Convention) may serve as a useful template for a convention on surrogacy.109 Undoubtedly, the Adoption Convention arose out of similar circumstances, for instance, an increase in transnational adoptions, the growth of private adoption agencies and intermediaries, and limping parentage and citizenship status. However, there are some critical differences in adoption and surrogacy, as pointed out by Hannah Baker, Senior Legal Office at The Hague Conference on Private International Law.110 For a substantial number of countries, excluding those with shari’ah-based family law, there was cultural consensus on adoption and the desirability of children to have families.111 The children born from surrogacy who are reproduced for the family are not orphans or abandoned; there are families awaiting their birth.
Unlike adoption, for commissioning parents who donate their eggs or sperm, there is a genetic link to the child(ren) born. The nature of surrogacy contracts requires them to enter into negotiations with the clinics and the surrogate. Throughout the process they generally tend to keep abreast of the developments and may maintain contact with the surrogate.112 Furthermore, the children’s parentage is typically adjudicated or settled immediately after birth, and one commissioning parent is often on the birth certificate. The facts and circumstances of surrogacy and the biological tie to a parent make almost all the safeguards of the Adoption Convention irrelevant. There is no habitual residence of the newborn child, the parents must have contact with the birth mother, and there are generally no eligibility requirements to become parents.113 The Adoption Convention’s substantive regulation of the processes of adoption is unlike the processes involved in surrogacy, making it an inadequate template for a surrogacy convention.
What could be useful is the articulation of safeguards tailored to surrogacy in a broader instrument on parentage and citizenship. Incorporating the United Nations Convention on the Rights of the Child (UNCRC), which is one of the most successful human rights conventions to date, such an instrument would be normatively agnostic with regard to surrogacy just as the UNCRC is to adoption.114 For countries that do permit the practice, the instrument could require minimum safeguards particularly with the regulation of intermediaries. As was the experience with the Adoption Convention, there was no consensus that all intermediaries be state run nor was there clarity on the appropriate level of remuneration for the intermediaries. It is likely that such divergences will be a factor in any instrument attempting to regulate transnational surrogacy particularly because, in most countries, surrogacy is provided primarily by private agencies and individual contracting surrogates. Such an instrument that settles the major transnational issues arising from parentage and citizenship and that is broader than surrogacy and neutral as to its ethical valence would most likely be more successful, allowing countries that do not permit surrogacy to accede to it. But on a cautionary note, there would have to be in the instrument some way of breaking the legal deadlock between countries which ban surrogacy on public policy grounds and countries that permit it when the citizens of the former travel to the latter. One way of breaking such a deadlock is to prohibit parties in surrogacy-providing countries from entering into agreements with citizens of surrogacy-banning countries and by enforcing that ban through visa restrictions and other diplomatic means in the providing country. In the interim, states that continue to ban surrogacy will have to resolve the problem of legal parentage and its impact on children. Being forced to acknowledge parentage through court action as France and Switzerland were made to do in effect vitiates the ban. Thus, these states may of necessity be forced to take an intermediate position that gives rights to parents that travel for surrogacy, even if the ban is in place nationally.115
Transnational surrogacy implicates multiple layers of regulation. It is clear that states need to confront the legal issues raised by surrogacy whether they are domestic or transnational. At the national level, states that permit surrogacy must consider the serious gaps and risk of exploitation that results from leaving regulation to private contracting between the commissioning parents, the infertility or surrogacy clinic, and the surrogate. Without some explicit parameters and strong background laws, the problem of unequal bargaining compounded by information asymmetries will reify gender and class hierarchies to the detriment of poor surrogates. These realities have given rise to concerns about the procedural and substantive fairness of surrogacy contracts and the human rights and liberty of surrogates and children born of surrogacy. Domestic regulations are, therefore, imperative for ameliorating possible exploitation and abuse of less powerful surrogates.
Over the past ten years, it has become clear that private ordering cannot regulate the nationality issues that arise from transnational surrogacy. For prohibiting states, the problems arise from their citizens traveling abroad for reproductive tourism and then returning with children who are adjudicated as theirs in the surrogacy-providing state and to whom they have a genetic tie. In the face of these facts, it is hard to fashion legal rules that are preventative without also punishing children born from surrogacy—a process in which they had no agency. Refusing recognition has led to uncertainty with regard to the status of children, jeopardizing their ability to participate as citizens and also their right to family and inheritance.116
Given the headaches created in surrogacy-providing states by these foreign citizens, some have already begun to prohibit transnational surrogacy. And while this solves the parentage and citizenship issues, it does not answer the critiques of the possible exploitation of poor surrogates.117 Some scholars mounting these critiques have demanded a ban of surrogacy entirely and are concerned about the globalization of the practice in ways that subordinates poor women from the Global South. For them, it is the commodification of reproduction that is most troubling.118 These scholars draw a distinction between surrogacy and adoption, often characterizing the latter as benevolent and altruistic and the former as exploitative commodification of women and children. For those who suggest that surrogacy follow adoptions in banning profit-making, it should be noted that such altruistic jurisdictions do exist. In those states, private clinics, brokers, and agencies all charge a “reasonable” fee for services at market rates rather than at cost.119 The only person who is not able to command a market rate is the surrogate because her market is artificially depressed or nonexistent. For those who profess a concern for vulnerable surrogates, this can hardly be the optimal arrangement. Even for those whose concern is the sale of children, profit-making in adoption was prohibited because of the risk of trafficking, yet it is less of a concern in surrogacy—for one thing, it takes rather longer to reproduce children and costs far more. And as some have observed, even with the prohibition on profit in place, transnational adoption has had ongoing problem with lax regulation by signatories.120
This is not to suggest that a private international instrument would be ineffective if it did regulate substantively but rather to suggest that such an instrument would be a hard sell. In other words, it is more likely that an instrument that addresses issues of parentage and citizenship broadly and that also contains provisions on surrogacy would be more easily acceded to than one that is narrowly tailored primarily to the substantive regulation of surrogacy processes and relationships among stakeholders. I make this argument based on the fact that surrogacy is a far more contentious practice than adoption, with many states taking a normative position against it.121 An international surrogacy instrument would likely be rejected by those states which ban surrogacy within their own borders just as the adoption convention has been by many Muslim majority countries that take a position against adoption leading to parental status and inheritance.122 Furthermore, it is hard to see how an instrument would be acceptable to transnational commercial surrogacy-providing countries if it contains a prohibition on commercial surrogacy. Those countries would simply exercise their prerogative to not join the convention, and the problem of conflicts of law on parentage and citizenship would persist.
As such, the current direction in which The Hague Conference is moving, to bring all surrogacy-providing countries to the table along with countries that currently ban the practice to resolve parentage and citizenship issues, is the best course. As their own Background Note suggests, these issues are broader than surrogacy itself, and the interconnections and conflicts between domestic law and the problems of comity and recognition need to be worked out quite carefully.123 It is hoped that the Conference will move expeditiously because the future of an increasing number of families is at stake.
(1) Paul R. Brezina, Ning Ning et. al., Recent Advances in Assisted Reproductive Technologies, 1 Current Obstetrics and Gynecology Reports 166, 167 (2012) (discussing the advances in IVF and gestational pregnancy).
(3) Firouzeh Nahavandi, Commodification of Body Parts in the Global South: Transnational Inequalities and Development Challenges 48 (2016); Priya Shetty, India’s Unregulated Surrogacy Industry, 380 The Lancet, Vol. 9854, 1633, (2012).
(4) While not all children from surrogacy are genetically related to their commissioning parents, having a genetic tie to at least one is more often the case particularly with transnational surrogacy.
(5) In re Baby M, 537 A.2d 1227, 1234 (N.J. 1988).
(6) See, e.g., Mark Strasser, Traditional Surrogacy Contracts, Partial Enforcement, and the Challenge for Family Law, 18 J. of Health Care L. & Pol’y 85, 88 (arguing that gestational surrogacy is more common and more accepted than traditional surrogacy).
(8) Note, It Takes a Village to Make a Child: Creating Guidelines for International Surrogacy, 100 Geo. L.J. 2249, 2250 (2010); Nilanjana S. Roy, Protecting the Rights of Surrogate Mothers in India, N.Y. Times, http://www.nytimes.com/2011/10/05/world/asia/05iht-letter05.html?_r=1&.
(9) See generally Katarina Trimmings & Paul Beaumont, General Report on Surrogacy, in International Surrogacy Arrangements: Legal Regulation at the International Level (Trimmings & Beaumont eds., 2013).
(10) Raksha Kumar, India’s Surrogacy Tourism Takes a Hit, Foreign Affairs, Dec. 11, 2015, available at https://www.foreignaffairs.com/articles/india/2015-12-11/indias-surrogacy-tourism-takes-hit (last visited Mar. 3, 2016); Rebecca Lee, Thailand bans surrogacy for foreigners with new law, PBS NewsHour, Feb. 21, 2015, available at http://www.pbs.org/newshour/rundown/thailand-bans-surrogacy-foreigners-new-law/ (last visited Mar. 3, 2016); Surrogacy in Nepal, Embassy of the United States, available at http://nepal.usembassy.gov/service/surrogacy-in-nepal.html (last visited Mar. 3, 2016).
(14) See, e.g., Amrita Pande, Wombs in Labor: Transnational Commercial Surrogacy in India 66–72 (2014).
(16) Dalia Bhattacharjee, Commercial Surrogacy in India: Bans, “Altruism” and the Women Involved, 51 Econ. & Pol. Weekly 14 (2016).
(19) For a survey of state regulation, see Cyra Akila Choudhury, The Political Economy and Legal Regulation of Transnational Commercial Surrogate Labor, 48 Vand. J. Transnat’l L. 1, 42–46 (2015).
(22) Alexandra Harney, Rich Chinese hire American surrogate mothers for up to $120,000 a child, The Telegraph, Sept. 23, 2013, available at http://www.telegraph.co.uk/news/worldnews/asia/china/10328132/Rich-Chinese-hire-American-surrogate-mothers-for-up-to-120000-a-child.html (last visited June 16, 2016); Sophie Yan, Chinese are hiring surrogate moms in America, cnn Money, Aug. 23, 2015, available at http://money.cnn.com/2015/08/23/news/china-us-surrogacy/ (last visited June 16, 2016).
(23) In re Baby M, 537 A.2d 1227, 1234 (N.J. 1988); Johnson v. Calvert, 851 P.2d 776, 778 (Cal. 1993); K.M. v. E.G., 117 P.3d 673, 673 (Cal. 2005).
While altruism may be part of the reasons for entering into surrogacy, it is undeniable that without the material remuneration, most women would not enter into surrogacy in India and they would likely not enter into it in the United States either. In those states that allow for altruistic surrogacy, surrogates are still paid substantial money but the payment is characterized as a living subsidy, healthcare costs, and other benefits that are not tied to the actual production of the child.
(25) Sharyn Roach Anleu, Surrogacy: For Love But Not for Money?, 6 Gender & Society 30, 31 (1992).
(28) See Shakargy, Israel.
(29) See Anna Arvidsson, Sarah Johnsdotter, & Birgitta Essen, Views of Swedish Commissioning Parents Relating to the Exploitation Discourse in Using Transnational Surrogacy, 10(5) PLoS One, May 8, 2015, available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4425515/ (last visited June 16, 2016).
(30) See generally Anne Hellum & Henriette Sinding Aasen, Women’s Human Rights: CEDAW in International, Regional, and National Law (2013).
(32) Elizabeth S. F. Roberts, Examining Surrogacy Discourses: Between Feminine Power and Exploitation in Small Wars: The Cultural Politics of Childhood, at 104 (1999). See also Margaret Friedlander Brinig, A Maternalistic Approach to Surrogacy: Comment on Richard Epstein’s Surrogacy: The Case for Full Contractual Enforcement, 81 Va. L. Rev. 2377, 2377 (1995).
(37) Obergefell v. Hodges 576 U.S. ___ (2015).
(38) Abortion in Latin America and the Caribbean, Guttmacher Institute, available at https://www.guttmacher.org/sites/default/files/factsheet/ib_aww-latin-america.pdf (last visited June 16, 2016).
(39) For a survey of countries that have laws on international or transnational surrogacy arrangements, see Trimmings & Beaumont, General Report on Surrogacy. To date this is the most comprehensive survey of countries on the issues of surrogacy.
(42) See Yehezkel Margalit, In Defense of Surrogacy Agreements: A Modern Contract Law Perspective, 20 Wm. & Mary J. Gender & L. 423, 444–450.
(43) Elizabeth Cohen, Surrogate offered $10,000 to abort baby, cnn, Mar. 6, 2013, available at http://www.cnn.com/2013/03/04/health/surrogacy-kelley-legal-battle/ (last visited June 16, 2016) (noting that the majority of surrogacies have happy endings).
(44) See generally Jayanth K. Krishnan et al., Grappling at the Grassroots: Litigant-Efforts to Access Economic and Social Rights in India, 24 Harv. Hum. Rts. J. 151 (2014); C. Rajkumar, Expanding Access to Justice, The Hindu, Nov. 28, 2013, available at http://www.thehindu.com/opinion/lead/expanding-access-to-justice/article5398212.ece (last visited June 16, 2016).
(48) Deborah L. Forman, Abortion Clauses in Surrogacy Contracts: Insights from a Case Study, 49 Fam. L. Q. 29–46 (2015) (analyzing the contract terms and remedies in surrogacy contracts containing abortion clauses).
(49) Forman, Abortion Clauses (discussing U.S. contracts); Lawrence O. Gostin, A Civil Liberties Analysis of Surrogacy Arrangements, 17 J. Contemp. Health L. & Pol’y 429, 444–445 (2001) (abortion right inalienable); see, e.g., Kimberly D. Krawiec, Altruism and Intermediation in the Market for Babies, 66 Wash. & Lee L. Rev. 203, 244–245 (2009).
(51) Pamela Laufer-Ukeles, Mothering for Money: Regulating Commercial Intimacy 88 Ind. L.J. 1223, 1265–1279 (2013); Barbara Stark, Transnational Surrogacy and International Human Rights Law, 18 ILSA J. Int’l & Comp. L. 369, 375 (2012); see also Yasmine Ergas, Babies Without Border: Human Rights, Human Dignity, and the Regulation of International Commercial Surrogacy, 27 Emory Int’l L. Rev. 117 (2013).
(53) Michael Sullivan, Surrogacy Storm in Thailand: A Rejected Baby, A Busy Babymaker, NPR.org, Oct. 22, 2014, available at http://www.npr.org/sections/goatsandsoda/2014/10/22/357870757/surrogacy-storm-in-thailand-a-rejected-baby-a-busy-babymaker (last visited Mar. 3, 2016).
(56) Katie O’Reilly, When Parents and Surrogates Disagree on Abortion, The Atlantic, Feb. 18, 2016, available at http://www.theatlantic.com/health/archive/2016/02/surrogacy-contract-melissa-cook/463323/ (last visited Mar. 3, 2016).
(59) See generally Charles L. Knapp, Unconscionability in American Contract Law: A Twenty-First Century Survey, UC Hastings College of Law Legal Studies Research Paper Series, Research Paper No. 71, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2346498.
(60) See generally Yasmine Ergas, Thinking “Through” Human Rights: The Need for a Human Rights Perspective with Respect to the Regulation of Cross-border Reproductive Surrogacy, in Trimmings & Beaumont, General Report on Surrogacy (discussing the human right implications of transnational surrogacy).
(61) See Ergas, Thinking “Through” Human Rights, at 169 n.243. (limping parentage occurs when there is “no legal avenue for the recognition of the second parent—now generally the commissioning mother …”).
(62) Kari Points, Commercial Surrogacy and Fertility Tourism in India, Kenan Institute Report, 5, available at https://kenan.ethics.duke.edu/wp-content/uploads/2012/07/Case-Study-Surrogacy.pdf (last visited Mar. 3, 2016).
(67) Baby Manji Yamada v. Union of India & ANR (2008) I.N.S.C. 1656 (India). Under Japanese law, the mother of a child is the person who gives birth and is there. There is no legal recognition that intentional mothers are legal mothers.
(72) Balaz v. Anand Municipality, LPA 2151/2009, para. 2 (Gujarat H.C. 2009); Seema Mohapatra, Achieving Reproductive Justice in the International Surrogacy Market, 21 Annals Health L. 191, 196 n.43 (2012).
(80) Ergas, Thinking “Through” Human Rights. For instance, the adoption convention requires the birth mother to have no contact with adopting parents before the adoption; for the child to have no prospects for adoption in the state of habitual residence; for the child to be an orphan, abandoned, or surrendered. Furthermore, Jan Balaz was the genetic father of the children. Requiring him to adopt his own children is an eventuality that the adoption convention was not crafted to address.
(83) Usha Rengachary Smerdon, Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India, 39 Cumberland L. Rev. 15, 15–16 (2008) (calling for the abolition of international surrogacy).
(84) Amanda M. Herman, The Regulation of Gestation: A Call for More Complete State Statutory Regulation of Gestational Surrogacy Contracts, 18 Chap. L. Rev. 553, 571–574 (2015); Kirsty Horsey, Surrogacy in the UK: Myth busting and reform, 35–37 (2015), available at https://www.kent.ac.uk/law/research/projects/current/surrogacy/Surrogacy%20in%20the%20UK%20Report%20FINAL.pdf (last visited June 16, 2016).
(85) Indian Council of Medical Research, The Assisted Reproductive Technologies (Regulation) Bill (Proposed Draft 2010), http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf.
(86) Vincent & Alene D. Aftandilian, Liberation or Exploitation: Commercial Surrogacy and the Indian Surrogate, 36 Suffolk Transnat’l L. Rev. 671, 671 (2013) (citing Indian Council of Medical Research, The Assisted Reproductive Technologies (Regulation) Bill (Proposed Draft 2010), http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf 2010.
(89) Ministry of Health & Family Welfare, Commissioning of surrogacy-instructions regarding, Nov. 4, 2015, available at http://www.dhr.gov.in/latest%20Govt.%20instructions%20on%20ART%20Surrogacy%20Bill.pdf.
(90) Commissioning of surrogacy-instructions.
(91) Shibu Thomas, Bombay high court relaxes surrogacy bar on foreigner, The Times of India, Nov. 7, 2015, available at http://timesofindia.indiatimes.com/india/Bombay-high-court-relaxes-surrogacy-bar-on-foreigners/articleshow/49696110.cms (last visited Mar. 3, 2016).
(92) See Sama-Resource Group for Women and Health, Constructing Conception: The Mapping of Assisted Reproductive Technologies in India, 11, available at http://www.samawomenshealth.org/downloads/Constructing%20Conceptions.pdf.
(94) See Sullivan, Surrogacy Storm in Thailand. That case might be considered the outer limit of commercial surrogacy where children really are merely products in a Fordist assembly line and surrogates no more than factory workers producing a commodity.
(95) A description of the law can be found at the Library of Congress, Global Legal Monitor, available at http://www.loc.gov/law/foreign-news/article/thailand-new-surrogacy-law/ (describing Thailand’s Protection for Children Born Through Assisted Reproductive Technologies Act).
(99) Mennesson v. France (application no. 65192/11), and Lebassee v. France (no. 65941/11) ECHR 185 (2014).
(100) Mennesson v. France and Lebassee v. France.
(101) Mennesson v. France and Lebassee v. France.
(102) Hague Conference on Private International Law, Background Note For the Meeting of the Experts’ Group on the Parentage/Surrogacy Project, Jan. 2016, 9, available at https://assets.hcch.net/docs/8767f910-ae25-4564-a67c-7f2a002fb5c0.pdf.
(103) Background Note For the Meeting of the Experts’ Group.
(104) See generally United Nations Convention on the Rights of the Child arts. 7, 8, 20, 21 opened for signature Nov. 20, 1989, 1577 U.N.T.S 3.
(105) Hannah Baker, A Possible Future Instrument on International Surrogacy Arrangements: Are There “Lessons” to Be Learnt from the 1993 Hague Intercountry Adoption Convention?, in Trimmings & Beaumont, General Report on Surrogacy.
(109) Hague Conference on Private International Law, A Preliminary Report on the Issues Arising From International Surrogacy Agreements, Mar. 2012, at paras. 58–63, available at https://assets.hcch.net/docs/d4ff8ecd-f747-46da-86c3-61074e9b17fe.pdf.
(112) See Pande, Wombs in Labor, at 137–143 (describing the relationship between commissioning parents and surrogates); Susan Imrie & Vasanti Jadva, The long-term experiences of surrogates: relationships and contact with surrogacy families in genetic and gestational surrogacy arrangements, 29 Reproductive BioMedicine Online, 424, 424–435 (2014), available at http://www.sciencedirect.com/science/article/pii/S1472648314003538 (studying contact between surrogates and parents after surrogacy obviously implying a prior existing relationship); even in the United States, many if not most agencies suggest getting to know the surrogate, see, e.g., https://www.growinggenerations.com/surrogacy-resources-for-intended-parents/creating-a-relationship-with-your-surrogate/; http://sharedconception.publishpath.com/the-relationship-between-the-surrogate-and-the-intended-parents; http://www.circlesurrogacy.com/blog/2014/12/26/relationship-surrogate-special-bond/.
(113) Contra, Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, arts. 2, 17, 29, 36, May 29, 1993 1870 U.N.T.S 167 (entered into force May 1, 1995).
(116) It Takes a Village to Make a Child.
(117) See Constructing Conception, at 58 (suggesting concerns about exploitation).
The negative characterizations are commonplace in the media, but beyond the amplified horror stories that are reported, there is scant evidence that women are trafficked for the surrogacy business. Moreover, as I have described elsewhere, the empirical evidence that has been gathered so far belies this account with surrogates themselves supporting the practice. See Kumar, India’s Surrogacy Tourism; Pande, Wombs in Labor; Choudhury, The Political Economy. Naturally, the choices to enter into such labor is constrained but so are a host of other very dangerous and less remunerative choices like scavenging, brick-breaking, and factory work. Yet, critics are less likely to demand paternalistic protections for these forms of work. It is insufficient to say that the choices are driven by economic pressure and demanding a ban of well-remunerated work without addressing these structural pressures themselves. To do so simply forecloses one form of morally disapproved-of work while leaving other equally dangerous, underpaid, and undesirable forms of work untouched simply because they are not morally repugnant.
(120) Gina Kim, International Adoption’s Trafficking Problem, Harvard Political Review, June 20, 2012, available at http://harvardpolitics.com/world/international-adoptions-trafficking-problem/ (last visited June 16, 2016).
(122) The Hague Conference on Private International Law, Status Table for Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoptions, available at https://www.hcch.net/en/instruments/conventions/status-table/?cid=69.
(123) Hague Conference on Private International Law, Background Note at 5.