SUSCEPTIBLE OUTSIDE THE WOMB: A CRITICAL ANALYSIS OF INTERNATIONAL LAW ON SURROGACY BY - VIDYA M.N
SUSCEPTIBLE OUTSIDE THE WOMB: A CRITICAL ANALYSIS
OF INTERNATIONAL LAW ON SURROGACY
AUTHORED BY - VIDYA M.N [Research scholar]
ABSTRACT
The present paper seeks to examine the framework
governing the formalities, procedural aspects and creation of rights involved
in the process of transnational surrogacy, in a critical limelight. In order to
do so, the paper will primarily elucidate on the concept of surrogacy. The same
will be expounded upon in relation to the formation of civil rights of the
individuals born through this method, based on certain domestic laws.
Thereafter, the paper will present the existing legal structure that governs transnational
surrogacy. It will further highlight the problems and potential drawbacks of
the current framework in this regard. Subsequently, the paper will venture into
the necessity and viability of various models proposed to shape the body of
private international law relating to surrogacy. Ultimately, the paper will provide a few
suggestive reforms to enhance the legal tools that determine the rights of the
parties involved in surrogacy.
Keywords: Transnational Surrogacy,
Conflict of Laws, International Surrogacy Agreements
The
augmentation of society’s ability to develop mutually beneficial relationships
has facilitated the creation of varying arrangements in nearly every sphere of
life. Coupled with advancements in science and technology, this understanding
has permitted the most natural of biological processes- of procreation and
parentage to transcend a binary relationship. In other words, aspiring parents
are now presented with the option of surrogacy i.e., of opting for the foetal
development of their child in the womb of another. Surrogacy pertains to the
practice of child-birth, whereby an individual who is capable of bearing a
child does so for such other person/people who intend to become parents.
Accordingly, there are two primary parties involved in the process of
surrogacy- the ‘surrogate’ (who bears the child) and the ‘intending parents’
(for whom the surrogate carries the child during pregnancy). Furthermore,
surrogacy may be either traditional-whereby
the surrogate’s egg is fertilised via a donor, consequently making the
surrogate the genetic mother; or it may be gestational-
whereby an embryo that has been formed by way of Assisted Reproductive
Technology, is placed in the surrogate to bear through the term of pregnancy.
Surrogacy may also be categorised as altruistic
or commercial- the former setup
involves nominal or no payment to the surrogate whereas in the latter
arrangement, the surrogate is paid a sum of money in addition to medical and
other expenses.
In
this regard, it is also pertinent to note the role of private international
law, which is that set of laws including conventions, legislations, rules, etc.
that primarily deals with matters involving a foreign element and accordingly
govern private relationships that are established across global borders. It
therefore, provides the legal framework for all transnational and non-criminal
transactions, including that of surrogacy.
Thus,
factors like development of reproductive technology coupled with the dwindling
of geographical limitations, development of international relations and the
body of international law, have further widened the scope for intending parents
to arrange for surrogacy.
2. INTERNATIONAL
LEGAL FRAMEWORK GOVERNING TRANSNATIONAL SURROGACY
2.1
TRANSNATIONAL
SURROGACY
2.1.1 Concept of
Transnational Surrogacy
In
the iatric context, surrogacy is a form of third-party reproduction wherein an
individual who has the medical capacity to give birth, consents to bear a child
for intending parties who are unable to conceive a child for any reason-
medical or otherwise.
In
plain language, transnational surrogacy refers to an arrangement for surrogacy
wherein the intending parents reside in a country different from the one where
the surrogate resides. It has been defined as- “Transnational commercial
surrogacy represents a form of medical tourism undertaken by intended parents
who seek to hire women in other countries, increasingly often in the global
South, as surrogates”[1].
2.1.2
Pros and Cons of Transnational
Surrogacy
The
presentation of pros and cons of transnational surrogacy is relevant to
identify the concerned drawbacks and facilitate the formulation of more
holistic suggestions.
1. Pros
of Transnational Surrogacy
(i)
It provides more options to experience
parenthood- whether limitation on the same is placed due to lack of imminent
resources or natural impermissibility. In other words, transnational surrogacy
provides the choice of opting for surrogates from countries with legally or
monetarily favourable systems.
(ii)
It provides the surrogate with financial
benefits and in some cases, a sense of industriousness too[2].
(iii) It
holds scope to cultivate a culture of a positive melting pot- which can in
turn, contribute to smoother international regulations, albeit in the distant
future.
(iv)
It has also been propounded[3] that- in a system exhibiting
transformed social valuation towards the labour of surrogates, the same may
also be regarded as positively contributing to the economy.
2. Cons
of Transnational Surrogacy
(i)
In any matter involving transnational
arrangements, there is a want of legal consistency- a problem that invariably
pervades the concept of surrogacy as well. This particular drawback will be
addressed in greater detail in the present paper.
(ii)
The potential risks posed to the surrogate
themselves in terms of medical issues, abandonment by the intending parents[4], etc. also place a critical
shadow on the process of transnational surrogacy.
(iii) Several
legislations do not permit the commercialisation of surrogacy on the grounds
that it primarily amounts to the sale of a child and/or organs and further
that, such activity of pregnancy is so inherent to womanhood and a mother’s
dignity that paying a sum for the same would amount to selling their wombs[5] and be morally wrong.
(iv)
In addition, some viewpoints put forth
indicate that surrogacy in itself, cuts ties between the person who actually
gives birth and the child- which in turn, is deemed as ethically wrong[6].
For the purpose of the present paper, while the aforementioned
positives and negatives will be taken into account, the primary concern
pertains to the legal inconsistences that fall within the ambit of private
international law.
2.2
INTERNATIONAL
LEGAL FRAMEWORK GOVERNING SURROGACY
The civil rights of a child (such as those
obtained by virtue of one’s citizenship) are largely dependent on their parents[7]. In order to claim such
right, determination of parentage is a pre-requisite- particularly so in
matters of transnational surrogacy where the intending parents and the
surrogate belong to two different nations thereby giving scope for
inconsistency between their laws. It is at this juncture that the body of
private international law intervenes, to assist in resolution of conflict of
laws and determine the rights of parties involved. This is particularly
significant as there is no extensive international convention or binding
instrument that holistically governs transnational surrogacy[8]. However, it is pertinent to
note that few instruments provide for safeguarding rights of children
(including right to nationality[9], right to private and family
life[10], etc.), which is at risk in
case of transnational surrogacy. Additionally, ‘Report of the Special
Rapporteur on the sale and sexual exploitation of children, including child
prostitution, child pornography and other child sexual abuse material’[11], also extensively addressed
the imminent necessity to address the threats posed to children born out of
surrogacy arrangements.
Since parentage is the foremost factor to be established for a child
to claim rights, the first conflict that private international law must seek to
resolve is determining which country’s laws must apply- while some countries
such as Sweden regard the surrogate as the child’s mother and her husband as
the child’s father and not the intending parents[12];
whereas some other countries like India require for the surrogate mother to
wholly terminate her rights over the child post birth[13].
This is in further comparison to other countries like UK where commercial
surrogacy is not permitted[14] and Germany where surrogacy
is altogether barred by law[15] and as such, the person
bearing the child would be the parent. This in turn, helps determine
citizenship (as the child usually acquires the citizenship of the parents) and
the associated civil rights of the child born out of surrogacy such as equality
rights, freedoms, and political rights as well.
It is also pertinent to note the following judicial pronouncements
that have specifically dwelled into the matter as well-
For instance, vide its pronouncement in Mennesson v. France[16], the European Court of Human Rights held that where the Courts of
USA had recognised intending parents having French nationality as the legal
parents of a child that was born via surrogacy, the French Courts had acted in
completed violation of the provisions of the European Convention on Human
Rights[17], and was accordingly wrong
in refusing registration of the intending parents in France. In essence, the
European Court of Human Rights rendered the rights to private and family life
of the child to prevail over that of the parents.
Furthermore, the Federal Court
of Justice in Germany held[18] that if a child is born to
a surrogate mother in Ukraine and immediately thereafter brought to Germany to
reside permanently, it is the law of Germany that will apply and as such only
the surrogate mother would be recognised as the parent under its laws. The case had arisen out of the issue that the
surrogate mother had been wrongly recognised as the wife of the intending
father due to conflict of laws relating to surrogacy in Germany and Ukraine.
Therefore, it may be stated that the international legal framework-
comprising of related instruments and few pronouncements, governing the process
of transnational surrogacy is still very haphazard and exhibits little to no
characteristic of global uniformity- where one country upholds the practice to
protect the child and simultaneously does not condone the practice, etc.
2.3 EVALUATION OF PROPOSED MODELS
(CONTEMPORARY DEVELOPMENTS)
For the purpose of the present paper, two specific models for
international law to govern transnational surrogacy will be examined-
2.3.2
Evaluating Model 1
‘Model 1’[19] herein, proposes an
international instrument to govern all forms of surrogacy, from which member
States can selectively opt to ratify those provisions which are in tune with
their domestic laws. In addition to recognising the child’s right to family and
nationality and proposed counselling for surrogates and intending parents, the
instrument further propounds the establishment of Competent Authorities and
Governing Committees at the Federal Level to act as authorities in charge of
regulating international surrogacy arrangements. The aforementioned dimensions
of the said model undoubtedly provide the basic, if not universally acceptable
framework that would provide a starting stone in formally recognising and
regulating international surrogacy arrangements.
However, the instrument also proposes to have a panel of ‘eligible’
surrogate mothers, who meet certain criteria and from which, intending parents
can explore their options for surrogacy. Furthermore, choice is purely provided
to the intending parents to select a surrogate mother whereas the initial
consent provided to be on the panel is regarded as the sole discretion that the
surrogate mother enjoys. This ambit of the proposed instrument is highly
problematic as it not only reduces the act of surrogacy to an economic
transaction but in doing so, it objectifies the surrogate mother. This further
leaves them open to exploitation and also brings in the risk of the child being
adversely affected, due to possible ill-treatment, abandonment, etc. Another
important suggestion made in the proposed instrument is the establishment of a
single deciding authority on matters of transnational surrogacy. While this per
se does not appear problematic, from the perspective of private international
law, further confusion may arise as to conflicts between the decision of this
authority and of Courts deciding matters of nationality in cases of
transnational surrogacy. Thus, in a sense the model has adopted an approach of
conglomerating the existing web of laws on surrogacy under a single instrument.
2.3.3
Evaluating Model 2
‘Model 2’[20] herein, proposes the
development of a model law- a Hague Convention on International Surrogacy,
based on the Hague Convention on Inter-Country Adoption. The proposition is
that of an international convention, based on the premise that multilateral
agreement would be the most effective way to address transnational surrogacy.
It demonstrates several promising features such as the acknowledgment of the
need for gradual uniformity and addressing the conflict between existing
standing and new jurisdictional authority. The model is more surrogate-centric
in that it proposes for provision of adequate consideration towards health and
legal representation of surrogate.
However, there is little to no provision to address the rights of a
surrogate child, at large. The model also proposes to confine convention to the
definition of surrogacy for the preliminary period. While common agreement on
definition is vital, it is pertinent to note that apart from the form of surrogacy,
there may be little to no difference in the definitions, bearing in mind the
similarities between existing definitions of transnational surrogacy. Moreover,
the proposed model also recognises scope to subsequently include aspects of
nationality and parentage into the convention. While it is questionable as to
what issue the primary convention will address if not for aspects of parentage
and nationality (at the bare minimum), the said recommendation is suggested to
have been made in line with the model’s step-by-step approach. One of the most
double-edged provisions proposed by the model is the prohibition of vetting of
intending parents due to scope for discrimination against same-sex couples.
While this fosters a more inclusive environment for intending parents, it may
pose threats to the child or even the surrogate mother, as substantiated
previously[21] based on the ill-practice
of abandonment of the surrogate and child. Thus, it may be inferred that Model
2 embarked on an attempt to replicate the existing convention governing another
inter-country interaction i.e., of adoption.
3.1
SUGGESTIVE
REFORMS
The
following suggestive reforms are made-
(i)
The principles of private international law
essentially seek to provide justice. Utilising the discretion afforded to
Courts with regard to the choice of law, jurisdiction, etc. in matters
involving a foreign element, Courts must seek to act in the best possible
interest of the three primary parties- the surrogate child, the surrogate parent
and the intending parents.
(ii)
While the proposed conventions as examined
under the banner of ‘Model 1’ and ‘Model 2’ herein render some exemplary
suggestions, there is further need for refinement in the mentioned models- for
instance, permitting partial uniformity through advancement of binding nature
of conventions, ensuring proper background check for both- intending parents as
well as surrogates, etc.
(iii) While
determining parentage of a surrogate child, the Courts may impose an obligation
to report to the Court/authority for the purpose, about the well-being of the
child and post-natal health of the surrogate, for the first few years. This
will enhance accountability of intending parents and safety of the child.
(iv)
In terms of the concept of surrogacy, there is
a need for a sociological shift before it can be recognised as positive and
consensual labour as opposed to the present viewpoint held. This may be
achieved through awareness programs.
3.2
CONCLUSION
The
opposing views expressed regarding transnational surrogacy stem from
ideological differences at the grassroot level whereby ethical dilemma persists
such that- on one hand being a ray of hope for intending parents who are unable
to conceive, and on the other hand, being regarded as demeaning and being tantamount
to organ-selling. Simultaneously, this collective morality is translated into
the law of the land and therein power dynamics steer the legal standpoint. It
is the range of contrasting legal standpoints that further complicate the
matter of determining parentage, citizenship, etc. The ultimate reformation
rests upon the two-fold approach- of improved legislations and an empowering
judiciary, to adequately resolve the questions raised under the ambit of
private international law in relation to transnational surrogacy.
1.
ROBERTO ANDORNO,
INTERCOUNTRY SURROGACY AND THE BEST INTEREST OF THE CHILD (2018).
2.
Barbara Stark, Transnational Surrogacy and International Human Rights Law, 18 ILSA J. INT'L & COMP. L. 369-386
(2011-2012).
3.
Rutuja Pol, Proposing an International Instrument to address issues arising out of
International Surrogacy Arrangements, 48 GEORGET. J. INT. LAW 1309-1335
(2017).
4.
Seema Mohapatra, Adopting an International Convention on Surrogacy- A Lesson from Intercountry
Adoption, 13 (1) LOY. U. CHI. INT’L L. REV. 25-55 (2015).
5.
Kristin Lozanski, Transnational surrogacy: Canada's contradictions., 124 SOC. SCI.
MED. 383-390 (2015).
6.
Rozée et. al., The social paradoxes of commercial surrogacy in developing countries:
India before the new law of 2018, 20:234 BMC WOMEN'S HEALTH, 1-14 (2020).
7.
Kristiana Brugger, International Law in the Gestational Surrogacy Debate, 35(3) FORDHAM INT. LAW J. 665-697 (2012).
8.
Brianne Richards, "Can I take the Normal One?" Unrelated Commercial Surrogacy
and Child Abandonment, 44:1(7) HOFSTRA LAW REV. 201-235 (2015).
9.
American Surrogacy, About Surrogacy, AMERICAN SURROGACY, https://surrogate.com/about-surrogacy/types-of-surrogacy/types-of-surrogacy/.
10.
Special Rapporteur, Surrogacy, UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH
COMMISSIONER, https://www.ohchr.org/EN/Issues/Children/Pages/Surrogacy.aspx.
[1] Kristin Lozanski, Transnational surrogacy: Canada's
contradictions., 124 SOC. SCI. MED. 383 (2015). https://doi.org/10.1016/j.socscimed.2014.10.003.
[2] Rozée et. al., The social paradoxes of commercial surrogacy
in developing countries: India before the new law of 2018, 20:234 BMC WOMEN'S HEALTH, 9-14 (2020). https://doi.org/10.1186/s12905-020-01087-2.
[3] H. Gottfried, and J.
J. Chun, Care Work in Transition:
Transnational Circuits of Gender, Migration, and Care, 44(7–8) CRIT. SOCIOL., 997–1012 (2018). https://doi.org/10.1177/0896920518765931.
[4] Brianne Richards, "Can I take the Normal One?"
Unrelated Commercial Surrogacy and Child Abandonment, 44:1(7) HOFSTRA LAW REV. 203, 212 (2015).
(Available at: https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2809&context=hlr).
[5] Kristiana Brugger, International Law in the
Gestational Surrogacy Debate, 35(3) FORDHAM INT. LAW J. 672 (2012). (Available
at: https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2438&context=ilj).
[6] See Mehpara Haq, Ethical and
Moral Issues Concerning Surrogacy, THE RMLNLU LAW REVIEW BLOG (July 31,
2015) https://rmlnlulawreview.com/2015/07/31/ethical-and-moral-issues-concerning-surrogacy/.
[7] Rutuja Pol, Proposing an International Instrument to
address issues arising out of International Surrogacy Arrangements, 48 GEORGET. J. INT. LAW 1315 (2017). (Available
at: https://www.law.georgetown.edu/international-law-journal/wp-content/uploads/sites/21/2018/05/48-4-Proposing-an-International-Instrument-to-Address-Issues-Arising-Out-of-International-Surrogacy-Arrangments.pdf).
[8] Seema Mohapatra, Adopting an International Convention on
Surrogacy- A Lesson from Intercountry Adoption, 13 (1) LOY. U. CHI. INT’L L. REV. 47 (2015). (Available
at: https://lawpublications.barry.edu/cgi/viewcontent.cgi?article=1082&context=facultyscholarship).
[9] International
Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), art. 24,
U.N. Doc. A/6316.
[10] European Convention
on Human Rights (ECHR), Rome, 4.XI.1950, art. 8.
[11] UN General Assembly,
Report of the Special Rapporteur on the sale and sexual exploitation of
children, including child prostitution, child pornography and other child
sexual abuse material, 24 January 2017, A/74/162, available at: https://undocs.org/A/74/162 [accessed 09th
November, 2021].
[12] Act on Children and
Parents Code 1949, (SFS 1949:381) Ch. 1-3.
[13] See Indian Council of Medical Research, National Guidelines for Accreditation, Supervision & Regulation of
ART Clinics in India, 2005
(Guideline No. 3.5.5.) https://main.icmr.nic.in/sites/default/files/guidelines/b.pdf. But cf. MoHFW, Instructions
regarding Commissioning of Surrogacy, (Notification
dated November 4, 2015) at https://main.icmr.nic.in/sites/default/files/art/Document.pdf. (Whereby
transnational surrogacy by foreign nationals in India has been wholly
prohibited). See also Baby Manji
Yamada vs. Union of India and Another, (2008) 13 SCC 518 (wherein the Apex Court had iterated the absence of adequate
framework governing surrogacy in India).
[14] Surrogacy
Arrangements Act 1985, (c. 49, §2).
[15] Embryo Protection Act
1990, (Part I, No. 69).
[16] Mennesson v. France,
No. 65192/11 ECHR 2014. See also PJS
v. News Group Newspapers [2016] UKSC 26.
[17] Supra note 9.
[18] Docket No. XII ZB
530/17, rev’d, 15 W 413/16.
[19] Pol, supra note 6, at 1331-1334.
[20]Mohapatra, supra note 7, at 47-55.
[21] Richards, supra note 4, at 212.