Regulation of international surrogacy arrangements: do we regulate the market, or fix the real problems?
Recent discussions about how to mitigate the international issues that have arisen as a result of international surrogacy arrangements have focused on ways to regulate the surrogacy market itself. The surrogacy market may not be the actual problem that needs to be regulated, but it does expose flaws that need to be addressed in the international private law system.
Recent advancements in medical technology have enabled the expansion of third-party assisted reproduction (surrogacy) for infertile couples and single individuals. When surrogacy arrangements involve individuals from more than one nation, the legal status of the individuals and the resulting child may be uncertain. Situations where "stateless" children were born through international surrogacy arrangements have prompted a discussion about whether some form of international regulation is needed, such as a Hague Convention on International Surrogacy.
The Permanent Bureau of the Hague Conference on Private International Law's Council on General Affairs and Policy is currently engaged in research to determine how to effectively address the issues posed by international surrogacy arrangements. (2) Of greatest concern are situations where the legal parentage, nationality, and immigration status of the child born through international surrogacy are unclear due to conflicting national laws governing these matters. Of additional concern is the potential for exploitation of individuals in the international surrogacy process, particularly the exploitation of the women who act as gestational carriers.
The question, therefore, is if and how to establish a regulatory framework to help avoid stateless children and exploitation of women. One approach would be to regulate the international surrogacy industry itself. This industry regulation could take the form of a Convention on Surrogacy that establishes rules specifically for surrogacy arrangements involving participants from more than one country. Another approach would be to regulate the acceptance of parentage documents between states. This approach could potentially be accomplished with existing international agreements, or through the implementation of new international agreements that are not necessarily specific to international surrogacy arrangements.
II. UNDERLYING MARKET FORCES
Before examining potential options for a solution to the problems posed by international surrogacy arrangements, it may be helpful to examine the parameters of the international surrogacy market. (3) It is undeniable that the commissioning of children through surrogacy--for money--represents a market. (4) Any solution to the problems posed by international surrogacy arrangements must take into consideration the underlying market forces at work in these arrangements.
The desire to reproduce is a powerful force in this market. Modern gestational surrogacy can be seen as a legitimate fertility treatment option for the infertile who wish to reproduce. The choice to reproduce is a fundamental human right. (5) There are many ways in which people can choose to reproduce, including surrogacy. Surrogacy is often conflated with adoption, but the markets for surrogacy and adoption are distinct. People who choose to pursue surrogacy do not always do so as an alternative to adoption.
Surrogacy has existed in various forms throughout history. (6) When fertility treatment advanced to separate the component parts of conception and gestation, market forces drove the growth of international surrogacy. (7) The international surrogacy market exists for two reasons: barriers to domestic surrogacy or other assisted reproductive options (evidenced by the pursuit of surrogacy in the United States by European intended parents), and cost savings (evidenced by the growth of surrogacy in lower cost nations). (8) The overall value of the market is unknown, but a report in 2010 estimated that the value of the surrogacy industry in India alone would reach USD2.3 billion by 2012. (9) In order to maximize profits, international surrogacy brokers will operate in the countries with the lowest regulatory restrictions. (10) Price is not everything in this market, however, as the intended parents will have their own personal criteria for deciding in which country to pursue surrogacy. (11)
Comparisons between the surrogacy market and the adoption market are frequent, but adoption and surrogacy are not "so similar that analysis of one can suggest solutions for the other," as suggested by one scholar. (12) Nor are adoption and surrogacy complete substitutes for each other--persons seeking parenthood do not always move smoothly and seamlessly between the two options. (13) The similarity between surrogacy and adoption rests in the fact that the child at the center of the process is born to a woman who does not keep it. The similarities quickly end there. Adoption is a process to transfer parental rights and responsibilities from one or more parties to another party or parties. In adoption, the state responsibility toward the existing child is paramount, particularly where the child is in state custody. Surrogacy, on the other hand, is a therapeutic option for the infertile, specifically those for whom being pregnant is physically impossible or medically contra-indicated. Surrogacy is a reproductive process where a child is created directly as a result of the actions of the intended parents. Of course, modern surrogacy (14) is achieved through medical intervention. It is also important to remember that adoption is a universally accepted mechanism to deal with the issue of raising children who (for any number of reasons) have no legal or de facto parents, while commercial surrogacy remains a sometimes controversial process that is permitted in certain jurisdictions and banned--or rising to the level of a criminal offense--in others. (15)
Certainly, adoption and surrogacy may be seen as alternate processes to achieve parenthood. However, surrogacy may be pursued as a logical extension of fertility treatment that may start when a heterosexual couple fails to conceive "naturally" beyond achieving parenthood, surrogacy achieves reproduction. Likewise, the "socially infertile" (such as a homosexual male couple) may have no realistic choice but to pursue surrogacy (including reproduction for one or both of the partners) in order to have children. The surrogacy market and the adoption market must therefore be seen as separate, overlapping markets for the simple reason that prospective parents have certain barriers and choices in how to achieve parenthood. Incentives for adoption may be beneficial to the adoption market, but it is not proper to use incentives (and disincentives) to undermine individual reproductive choice, particularly when legal barriers restrict market mobility.
Market-based mechanisms have allowed international surrogacy to operate efficiently, with the result that this reproductive option can often happen as quickly and as cost effectively as humanly possible. For intended parents who have often waited many years to fulfill the lifelong dream of having children, the availability of surrogacy as a choice is extremely beneficial. It is not unusual for there to be extraordinary delays in being able to adopt a child internationally. In addition to the delays in meeting the eligibility processes set out by adoption authorities (including the Central Authority in the adoptive parents' country), once the overseas country approves the adoption, delays of three to five years are not uncommon, and are increasing. (16) In Australia, for example, delays have been described as "glacial" and have been up to 8 years from beginning to end. (17) If an adoption-based model of regulation were extended to international surrogacy, the effect on the intended parents' right to reproduce would be disastrous. Consider, as an example, a married couple where the woman has just had a hysterectomy. This couple may choose to pursue surrogacy to have a child, but will need to move quickly in order to use the woman's eggs in the process. A lengthy application and vetting process would prevent the couple from having a child genetically related to both of them.
Market forces are central to the consideration of international regulatory schemes for international surrogacy arrangements. While the market is price-sensitive, with the concomitant shift to lower-cost areas, it is not completely elastic. The desire to reproduce and the timing issues inherent in human reproduction are powerful influences in the decision-making of the intended parents. Significant barriers to international surrogacy arrangements will necessarily force some market participants to other means of achieving parenthood, with perhaps more risk and less legitimacy. If we lose sight of these market forces that underlie international surrogacy, attempts to regulate this market may lead to unwanted consequences that defeat the purposes of regulation and shift the issues elsewhere.
III. IS SURROGACY THE REAL ISSUE?
The real issue with surrogacy arrangements, and with assisted reproductive technology in general, is that they challenge societal notions of identity and the family structure in relation to the public and private spheres. (18) This challenge creates the false notion that international surrogacy arrangements themselves are the problem, rather than the inconsistent manner in which nations assign parentage and nationality. When the problem is viewed as inherent to international surrogacy arrangements, inappropriate conclusions about how to mitigate the negative effects of the market may result.
In one of the first proposals for a Convention on International Surrogacy Arrangements to be published, Dr. Katarina Trimmings and Professor Paul Beaumont set out their position in International Surrogacy Arrangements: an Urgent Need for Regulation at the International Level. (19) The Trimmings and Beaumont article gives a framework for a regulatory scheme for international surrogacy arrangements. Essentially, it is a proposal to regulate the international surrogacy industry itself. The article authored by Trimmings and Beaumont represents a strong viewpoint that has gained the attention of many in the international surrogacy and assisted reproduction technology communities. For the purposes of simplicity, the Trimmings and Beaumont article and framework will be referred to in this document as the "Trimmings/Beaumont Model."
The Trimmings/Beaumont Model correctly states that "highly complex legal problems arise from international surrogacy arrangements. Among these problems, the most prevalent are the question of legal parenthood and the nationality of the child." (20) There are many examples of international surrogacy arrangements that have resulted in "stateless" children. (21) Avoiding these situations is a key objective of the Trimmings/ Beaumont Model. (22) Another desired effect of the Trimmings/ Beaumont Model is reduction of the potential for human trafficking and exploitation. (23)
It is essential to understand that the problems of "stateless" children that the Trimmings/Beaumont Model sets out to solve are essentially disputes between States, not between private citizens. The real problem is that there are potentially conflicting legal regimes for determining parentage and citizenship among the nations involved in an international surrogacy arrangement. These are not typically situations where the intended parents and the surrogate contest the parentage of the child. Rather, the children are deemed "stateless" precisely when the intended parents attempt to take the children back to their home country pursuant to their agreement with the gestational carrier. The direct conflict between the private contract between the parties and the national laws of their respective home countries creates the issue of "statelessness." The notable cases where these conflicting legal systems were exposed forced the nations implicated to work together to solve the problems created by the conflicts of law. (24)
The question is whether an international regulatory scheme specific to surrogacy will sufficiently address such problems. As the California Court of Appeal for the Fourth District stated in 1998, "[e]ven if all means of artificial reproduction were outlawed ..., courts will still be called upon to decide who the lawful parents really are and who ... is obligated to provide maintenance and support for the child. These cases will not go away." (25) International surrogacy arrangements bring issues with conflicting national laws to the fore; regulation of international surrogacy as a proxy for addressing these conflict of laws issues could lead to an exacerbation of the problems it seeks to solve.
In fact, the legal complexity surrounding international surrogacy arrangements may actually be helpful in the absence of a broader regulatory scheme. Because of the legal pitfalls involved, the intended parents who pursue international surrogacy arrangements must do so with extreme care and planning. The daunting complexities and potentially disastrous pitfalls serve as a deterrent to intended parents and as an incentive for legal practitioners to exercise a high degree of caution in these arrangements. (26) In contrast, those intended parents who choose to pursue international surrogacy without regard to the legal complexities will also likely not be dissuaded by a new regulatory scheme. This is a fundamental challenge facing regulation of international surrogacy: some individuals will pursue international surrogacy without regard to law or regulation. Surrogacy-specific regulation will therefore be ineffective to resolve the difficult problems posed by these cases.
It is not that there is no existing regulation for international surrogacy; the issue is that each state manages the legal infrastructure underpinning these arrangements differently. It is precisely these differing legal infrastructures that structure and control the arrangements. (27) The problem is that the legal infrastructure in one country may not be compatible with that in another country. What is needed, therefore, is a framework of cooperation to resolve issues as they arise from incompatible laws.
The danger with a comprehensive regulatory scheme focused on international surrogacy is that it may be too restrictive, pushing legitimate participants out of the market and into the "grey" or "black" market. (28) An example of the effect of over-regulation can be seen in Italy. Heavy regulation of assisted reproductive technology, including surrogacy, has contributed to the growth of international solutions for Italian citizens. (29) Faced with laws prohibiting domestic surrogacy, Italian intended parents must avail themselves of surrogacy in the international market if they choose to pursue this reproductive option. Similarly, if a new Convention on international surrogacy arrangements were too restrictive, some intended parents in Convention nations might choose to pursue surrogacy in non-Convention nations or in less legitimate markets.
The Trimmings/Beaumont Model suggests that an international regulatory scheme would "promote the exchange of information ... reduce 'limping' or unrecognized surrogacy arrangements ... [and] help to combat trafficking in women and children." (30) While the exchange of information would undoubtedly improve, the other two effects are not so certain. Specifically, increased regulation will result in the exclusion of people from the market. Some of these people will seek surrogacy outside of the regulatory scheme--in the "grey" and "black" markets where the surrogacy arrangements may not be recognized and lead to international legal issues. In addition, as regulation pushes people out of the market, the risk of exploitation in the grey and black markets will increase with the increased demand.
Surrogacy itself may not be the real issue. Rather, the uncertainty with these arrangements is a symptom of a more general problem of irreconcilable family and citizenship laws at the international level. It is important to note that these legal issues may arise in cases that do not involve surrogacy. (31) Thus, international regulation focused solely on surrogacy arrangements may be under-inclusive. Rather than focus on the regulation of the international surrogacy market itself, international agreement on the assignment of parentage and citizenship would be more helpful in mitigating issues in this market.
IV. CONSIDERATION OF THE TRIMMINGS/BEAUMONT MODEL
To the extent that efforts continue to define an international regulatory scheme focused on surrogacy arrangements, the framework proposed by the Trimmings/Beaumont Model warrants closer examination. This discussion of the Trimmings/ Beaumont Model is not meant to give the model more importance, but rather to discuss its key points, because these are ideas that appear regularly in discussions about regulating the international surrogacy market.
The Trimmings/Beaumont Model describes a flexible framework in which countries maintain an open dialogue regarding issues surrounding international surrogacy. The approach would leave a great deal of autonomy to individual countries to apply the framework with the context of their own law, or to negotiate bilateral agreements with other countries. This is a sensible starting point, given that every country will have its own body of law, particularly family law, where any changes would have far-reaching effects throughout their societies. Great care must be taken to respect the public policies of every county participating in such a regulatory scheme. The most important aspect of the legislative approach proposed by the Trimmings/Beaumont Model is a recognition that international surrogacy arrangements exist, and that nations need to cooperate when conflicts of law arise.
Despite its focus on flexibility and cooperation, the Trimmings/Beaumont Model has two major flaws. First, the focus on regulating the international surrogacy market itself is misplaced. The legal issues that arise in international surrogacy are conflict of laws problems that can arise in non-surrogacy contexts and are therefore more effectively addressed outside the context of surrogacy. Second, to the extent that international surrogacy is to be regulated, using international adoption as a template for such regulation is misguided, and leads to several inappropriate proposals for regulatory solutions. Ultimately, the indirect abuses (such as human trafficking and exploitation) that the Trimmings/Beaumont Model proposes to address could instead be exacerbated if such regulation were implemented.
Any regulation of international surrogacy arrangements should be developed with an eye toward navigating conflict of laws issues. The regulatory framework proposed by the Trimmings/Beaumont Model contains both valuable and problematic provisions, and overlooks other useful provisions. As a starting point, the Trimmings/Beaumont Model looks to the regulatory scheme of the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Adoption Convention). This foundation for a Surrogacy Convention misconceives the market, and reinforces unhelpful biases against international surrogacy.
A. The Trimmings/Beaumont Model Misconceives the Market
The Hague Conference on Private International Law has already recognized that the Adoption Convention is not appropriate as a model for a Convention on international surrogacy. (32) Nevertheless, the Trimmings/Beaumont Model suggests the Adoption Convention can be a template for a Convention on surrogacy. This suggestion is based on two key elements of the Adoption Convention: its political success, and its flexible approach.
However, underlying the proposal that the Adoption Convention be used as a template for a Surrogacy Convention is the mistaken idea that adoption and surrogacy are more alike than not. (33) Even as it recognizes that there are fundamental differences between surrogacy and adoption, the Trimmings/Beaumont Model nevertheless conflates the two.
B. Helpful Provisions of the Trimmings/Beaumont Model
The strength of the Trimmings/Beaumont Model is the recognition of the existence and effect of surrogacy arrangements and the recommendation that nations uphold the enforceability of surrogacy arrangements even if they are not made pursuant to the local law. (34) Agreement between nations to recognize the citizenship and parentage decisions made by other nations would go a long way in solving the majority of issues with international surrogacy in particular, and assisted reproductive technologies in general. This is, however, perhaps the most politically sensitive recommendation; it implicates the internal law and sovereignty of nations in terms of their determination of who is a citizen and how families are structured in relation to society. In fact, at the very core of the issues we see in international surrogacy arrangements, the questions of local family and immigration law are the controlling factors.
The Trimmings/Beaumont Model suggests that the "details of financial accountability of accredited bodies should be left to domestic regulation." (35) This is appropriate, as the service of navigating the legal and medical complexities is relative to many factors. Certainly, the differing factual situations and legal challenges of every surrogacy arrangement render a mandated fee structure unrealistic.
C. Provisions that Should Be Reconsidered
The Trimmings/Beaumont Model proposes a Convention based on two important legal principles: the "best interests of the child," and a mandatory genetic connection between the child born of international surrogacy and one or more of the intended parents. (36) While these are important principles, they are overly exclusionary as central principles. The doctrine of best interests as applied to international surrogacy can lead to conclusions fraught with cross-cultural judgment. The requirement for a genetic link serves as a barrier to the market, and a chilling precedent that could have disastrous impacts beyond the surrogacy market.
Further, the Trimmings/Beaumont Model proposes an evaluation of the parental fitness of intended parents. This idea is not only misguided, but contrary to the right to reproduce, as recognized internationally and locally in many nations.
Finally, other proposals that increase cost and administrative burdens, or which decrease individual choice in the process, should be reconsidered. These well-intentioned proposals may be redundant with other national or international procedures, or may actually serve to defeat the purposes of the Trimmings/ Beaumont Model.
D. The "Best Interests" Doctrine Is Not the Best Doctrine for Surrogacy
The "best interests of the child" doctrine is inadequate to deal with the complexities of surrogacy, particularly in the international context. In surrogacy, unlike a typical custody proceeding, the child is a newborn--there is no basis from his or her experience to attribute a "best interest." Therefore, a court will necessarily need to determine "best interests" based on the characteristics of all of the parties involved--raising issues of socio-economic status, class, race, and culture along the way. When all parties agree on the expectations for parentage and citizenship of the child in advance, as in a properly executed international surrogacy arrangement, the "best interests" doctrine is unnecessary.
In the case of Baby M, a contested traditional surrogacy, the "best interests" of the child was presumably the basis on which custody was determined. (37) However, the "best interests" evaluation of Baby M took into account the father's economic status and the actions of the surrogate during the custody proceedings. (38) Ultimately, the analysis had little to do with the infant's "best interests" and more to do with the societal conceptions of the parents' fitness. In the international context, the question of "best interests" becomes even more complicated, as it inevitably will weigh the relative wealth of the parties involved, the ethnic background of the child, and the various societies in which the parties live. The analysis could quickly become fraught with cross-cultural judgment, exacerbating international tensions.
E. Biological Connection
This proposed requirement is inappropriate and violative of the privacy of intended parents. It could also lead to disastrous results for the practice of fertility treatment. The Trimmings/ Beaumont Model says: "there is no need to create more children as there are millions of children around the world who are in need of adoption, waiting for a loving home. The Convention ... must give a clear message that the proper route to obtaining a genetically non-related child is through adoption." (39) This perspective, when removed from the context of surrogacy, would prevent a married couple from using donated gametes (eggs and sperm) to conceive and carry a child without the service of a gestational carrier. The logical extension of this perspective is that all assisted reproductive technology (ART) procedures involving donor gametes should be rationed according to the supply of adoptive children; that those who are unable to have children "naturally" must forego their reproductive choice until all available adoptive children are placed. Even worse, this requirement could further suggest that all fertility treatment--and even "natural" reproduction--could be curtailed in order to address the needs of adoptive children.
More practically, imposing a mandatory genetic link means that necessarily some intended parents will be denied the dream of parenthood. It is current practice that intended parents seek a child who is their genetic offspring. However, the journey for intended parents seeking surrogacy is often the journey of last resort. Sometimes, due to the cruel tricks of biology and reproduction, intended parents may not be able to have a genetic connection with their child. For example, a married couple may try fertility treatment and IVF for several years with no success. Upon further medical evaluation, they may find that the woman is unable to carry a child safely to term, or that the man's sperm is not of sufficient quality to conceive. By this time, the woman may have reached an age where her eggs are also not of sufficient quality to conceive. This couple will necessarily need to rely on a surrogate, an egg donor and a sperm donor to be able to achieve their dream of becoming parents. Another couple may discover that they both are carriers of a gene for a condition that would be incompatible with any of their genetic children's' ability to survive. Another couple who cannot use their own gametes to conceive may turn to their respective siblings for genetic material. To require a genetic link between these hypothetical intended parents and their children born through surrogacy would deny these individuals the fundamental right to reproduce and would interfere with their private medical decisions.
A proposal for a mandatory biological connection between the intended parents and children born through surrogacy comes from the misguided conflation of the adoption and surrogacy markets. It is an attempt to address the problems seen in one market (adoption) with a manipulation of the regulatory scheme in another market (surrogacy). Such a proposal is overbroad, and leads to undesirable conclusions about the regulation of both markets. In addition, this requirement also precludes the use of donor embryos in international surrogacy arrangements, eliminating a viable use of this valuable resource by willing individuals.
F. Evaluation of Parental Fitness
As part of the "best interests of the child" analysis, the Trimmings/Beaumont Model would have each state be responsible for the evaluation of intended parents' fitness to create a child. (40) This is again a conflation of the issues of adoption (transferring responsibility over an existing citizen) and surrogacy (establishing filiation with a newborn from the moment of birth). More importantly, however, is that a duty to evaluate parental fitness in intended parents is contrary to the human right to reproduce. "Parents have the exclusive right to determine freely and responsibly the number and spacing of their children." (41) If we are to judge the parental fitness of those who would create a child through surrogacy, then there is no logical distinction to be made with judging the parental fitness of those who would pursue parenthood through any ART method. From there, it is not a difficult logical leap to require an evaluation of parental fitness for any parent who would create a child through any means--including "natural" reproduction. (42)
It is most concerning that an evaluation of parental fitness may be used as an excuse by countries to deny same sex couples, single intended parents, or other politically disadvantaged people the ability to reproduce through surrogacy. It may also be used as an invasive process of investigating a couple's sex life, finances, criminal history and medical status. (43) A notorious example of an assessment of intended adoptive parents being deemed "unsuitable" to adopt were actor Hugh Jackman and his wife Deborra-Lee Furness, who, following enormous difficulties in seeking to adopt in their home state of New South Wales, Australia, gave up and instead adopted their children in the United States. (44)
A more positive recommendation would be some form of social counseling for the intended parents, focused on how they will explain the child's origins to him or her. Also, a discussion of the various risks and outcomes that may be encountered is important. Through this introspective exercise, the intended parents can determine if international surrogacy is the best option for them, or if another process to achieve parenthood is more appropriate.
G. "Habitual Residence" As a Determinative Factor
The Trimmings/Beaumont Model proposes a Convention where the concept of "habitual residence" is made uniform across member nations. (45) This proposition makes conceptual sense, and applies beyond issues of surrogacy. Likewise, the provision that the child be presumed a citizen of the nation of the intended parents' habitual residence could help resolve the citizenship and immigration issues that arise. However, there are often practical difficulties when the intended parents are citizens of one country, but residents of another--and they undertake surrogacy in a third. For these intended parents and their child, sorting out residency and nationality issues cannot easily be solved by relying on a simple "habitual residence" construct. In order to determine the nationality and residency status of a child born through surrogacy, a more effective (and efficient) means would be to indulge in a legal fiction that a surrogate is not involved in the birth of the child; a legal fiction that the child was born to one of the intended parents. With this approach, nationality and residency are determined as simply as they are for a "natural" born child. The legal fiction approach would be consistent with the heart of the arrangement between the parties: that the intended parents are in fact the parents of the child.
H. Administrative Oversight
The Trimmings/Beaumont Model proposes that Convention nations create a regulatory agency to approve international surrogacy arrangements (and, presumably, domestic ones as well) and to monitor compliance. (46) While this solution may work for some nations, others may prefer to rely on alternate institutions for regulation. For instance, medical standards of care and professional ethics for lawyers are critical elements of surrogacy arrangements, and regulation of these can be effectively achieved without a specific governmental agency. These non-governmental institutions form part of the "market infrastructure" that regulates surrogacy arrangements today. (47) Thus, Convention nations should be able to choose how they structure the regulation in their own society.
Central regulatory agencies specific to surrogacy would add unnecessary cost to the system. A new layer of administration could burden taxpayers and participants in the market. Furthermore, such a layer of administration focused on international surrogacy risks being redundant and incomplete. Additional administrative oversight would risk reducing the relatively rapid process of surrogacy to a glacial pace, with attendant increased costs and frustration for the intended parents. There is also the risk that by creating a new bureaucracy, the new bureaucracy becomes self-justifying and imposes unnecessary requirements that unduly burden the process.
Governmental intervention of this sort in "natural" reproduction is offensive to modern notions of autonomy, privacy, and the freedom to reproduce--likewise, such intervention for one reproductive choice must be very carefully considered. To the extent that the majority of the problems encountered by international surrogacy are really issues with existing legal and social structures, a central authority that seeks to resolve these issues only in the context of surrogacy misses the mark. Worse, overregulation could exacerbate the risks of exploitation. As the cost of the process increases, some market participants will seek less costly (and perhaps less legal) alternatives to parenthood.
I. Licensing Requirement
The Trimmings/Beaumont Model proposes outlawing all surrogacy arrangements not made with licensed agencies. (48) While understandable, this proposal may be overbroad. Is there to be a license to practice international surrogacy? Or, will state permission to practice law or medicine suffice? The answers to these questions can have a profound effect on the results of an international regulatory scheme.
Currently, participants in the international surrogacy market take an enormous risk if they do not work with a competent practitioner. The inherent uncertainty in the current market gives people pause before they enter the market. In this sense, the complexity of the market is self-regulating, giving participants a strong incentive to act with caution and care. Using a competent broker is part of the calculation of the intended parents; those who choose not to work with one do so at their own peril.
In addition, the requirement that all economic activity pass through licensed agencies necessarily limits the availability of surrogacy agency services. In turn, supply of these services would be restricted, resulting in upward pressure on price. Such a result would increase risk of exploitation of the intended parents and surrogates alike as individuals move to the grey or black markets to seek lower costs and less oversight.
More importantly, the proposed licensing requirement raises an important issue for any regulatory framework: the consequences of regulatory violations. If a subset of surrogacy arrangements is outlawed, then the logical recourse when such arrangements occur is to punish the parties involved, including the intended parents and the gestational carrier. A severe punishment for intended parents would be removal of the child. Short of removal of the child, fines or criminal sentences could be imagined for the intended parents. Likewise, a penalty for the gestational carrier could range from fines to imprisonment to responsibility for the child that she delivered. Whatever penalty is applied, it would ultimately serve to punish those whom the regulation purports to protect: the children born of surrogacy.
This issue underscores another fundamental problem with regulating international surrogacy arrangements: nations may try to implement penalties for engaging in the international surrogacy market, but violations of the rules are rarely seen until after the child is born. Punishments that do not affect the well-being of the child may have no "teeth" to dissuade people from participating in the international surrogacy market, while punishments that could dissuade market participants may be viewed as cruel to the newborn infant and the other parties involved. Either way, the punishments are ineffective to address the problems that the regulation would attempt to solve.
J. Compensation for the Gestational Carrier and Gamete Donors
Compensation for the gestational carrier is important, as it allows the market to function by balancing the rights of the carrier with the responsibilities of the intended parent or parents. However, caps on compensation may increase the possibility of exploitation. (49) International surrogacy arrangements heighten the concern of exploitation, as one of the main factors behind the existence of the international surrogacy market is price. On the one hand, lower costs for surrogacy arrangements give more people access to this reproductive option. On the other hand, higher compensation for gestational services may be seen as potential coercion for women in underdeveloped countries to become surrogates. Achieving a balance is a challenge, one best left to local regulatory expertise.
While the Trimmings/Beaumont Model allows flexibility for nations to regulate compensation models, it relies on the idea that a maximum limit to compensation should be part of the regulation. (50) The idea that overly coercive amounts of money will be offered to women in underdeveloped countries may be somewhat exaggerated. The market for international surrogacy is highly price-sensitive. (51) The surrogacy market has expanded to lower-cost areas precisely because those areas are lower-cost. As prices rise in a particular geographic market, the attractiveness of that market diminishes.
For gamete donors, the concerns may similarly be overstated. In the United States, the egg donation market is rife with myths of eggs regularly sold for six-figure amounts. The reality is that the vast majority
of egg donors in the US receive between five and ten thousand dollars per donation, conforming to the ASRM standards for egg donor compensation. (52) Here, again, the concerns of coercive exploitation of women through excessive sums of money are exaggerated.
Rather than income-based caps for compensation, a flexible approach to compensation is more appropriate. Nations and localities should be able to monitor and manage the delicate balance between market demand and market exploitation without conforming to a global formula, as the management of this balance will be based on each society's notion of fairness in this market. Nevertheless, care should be taken to avoid additional pressure for intended parents to move from the legitimate market to a less desirable means of achieving parenthood.
K. Access to Birth Records by Children Born through Surrogacy
The Trimmings/Beaumont Model rightly distinguishes the process of gestational surrogacy from adoption in area of access to birth records. (53) While international law may require an adoptive child to be able to access information of her birth parents, the applicability of this concept to children born of gestational surrogacy is more problematic, particularly when donor gametes are not involved. Varying legal conceptions of the privacy of the family and medical information may warrant greater flexibility on this point. Ideally, each individual should have a clear view of his or her genetic and gestational origins. However, children of "natural" birth are afforded no such guarantee (at least as regards their paternity). Children born through surrogacy may likewise need to rely on the disclosures or approvals of their parents for complete information, just as are children born through fertility treatment (including use of donor gametes) without surrogacy. Any regulation that would mandate disclosure in the case of international surrogacy would therefore impose an additional burden on parents who choose surrogacy as their reproductive option. Such a burden is not imposed on other parents who have the ability to deny their children full information about their origins.
V. PROVISIONS FOR AN INTERNATIONAL REGULATORY FRAMEWORK
The discussion of the Trimmings/Beaumont Model highlights many areas of regulation of international surrogacy arrangements that may be inappropriate or ineffective. However, there are potential areas of regulation that can be explored. Certain provisions specific to the surrogacy market and the nature of the conflict of law issues can be considered.
A. Intent-Based Parentage Analysis
The intent-based approach to parentage relies on the concept that "but for" the actions of the intended parents, the child born through surrogacy would not exist. (54) This theory, while not universally accepted, is often cited or used as a factor in other forms of parentage analysis. Intent plays a significant role in the expectations that each party in a surrogacy arrangement has from the outset of the process, and should be expressed in any contractual instruments involved. Even without reducing surrogacy to the contractual sphere, however, the examination of the intention of all of the parties is critical to the analysis of legal issues that arise. The doctrine of intention provides a sound legal basis for recognizing as the parents of the child born through surrogacy those whose actions brought about the child. (55)
As further support for including the doctrine of intention, the Trimmings/Beaumont Model suggests that this passage from the Adoption Convention be followed: "the policy of Contracting States regarding the nationality of the child should be guided by the overriding importance of avoiding a situation in which an adopted child is stateless." (56) When applied to surrogacy, the logical result is citizenship for the child based on the country of citizenship or habitual residence that all parties expected for the child. This appropriate resolution of the citizenship problem mirrors the intent-based parentage model.
Finally, it is important to remember the distinction between adoption and surrogacy when considering the doctrine of intention. Surrogacy is a process through which a child is conceived, gestated, and born based on the intended parents' desire to procreate. It is the actions of the intended parents that set this process in motion. If the intended parents never chose to reproduce, the child born through surrogacy would not exist. Thus, the doctrine of intention is essential to navigate issues that arise in the process.
B. Reproductive Experience of the Gestational Carrier
The proven ability to act as a gestational carrier could be considered as a part of an international regulatory framework. Specifically, only those women who have previously given birth to a child of their own should be permitted to serve as a gestational carrier for others. This requirement would serve a twofold purpose. First, it enhances the stability of the surrogacy arrangement by affording the woman serving as a gestational carrier the ability to enter into the arrangement from a more fully informed perspective. From the intended parent perspective, it gives a level of comfort that the woman can carry a pregnancy successfully to term. Second, the experience requirement helps to alleviate concerns of at least one type of exploitation--that of reproductive substitution. (57) Particularly where the carrier has children of her own, the issue of allowing the "advantaged" intended parents to reproduce while the "disadvantaged" surrogate cannot becomes less severe. The Trimmings/Beaumont Model leaves out mention--other than in a footnote--of the reproductive experience of the gestational carrier. This provision may have been left out of the Trimmings/Beaumont Model out of deference to local regulation or out of practical concerns for its unenforceability, but it should be considered as a core provision for the protection of all parties involved.
C. Traditional Versus Gestational Surrogacy
In the United States, "traditional" surrogacy arrangements between strangers are strongly disfavored as a market option. In the international market, traditional surrogacy (between strangers) raises more complex questions of citizenship, parentage, and coercion. Thus, traditional surrogacy between strangers should perhaps be a form of surrogacy that is not favored in the global market, regulated instead more similarly to adoption or other international custody proceedings.
VI. OTHER INTERNATIONAL INSTRUMENTS
The Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (hereinafter Apostille Convention) may be able to help with the conflict of laws problems posed by international surrogacy arrangements. This Convention was established in order to streamline the process of certification of public documents (such as birth certificates) created in one country and produced in another country. (58) The Apostille Convention only addresses the authenticity of the certified documents, leaving an open question about the validity of the certified documents in the receiving country. One possible solution to the problems of parentage and nationality found in international surrogacy arrangements would be to build upon the Apostille Convention to explicitly call for the legal recognition of certified documents in Convention states. Specifically, this would mean that a birth certificate validly produced in one Convention state must be given full legal effect in all Convention states regardless of whether the birth certificate could have been validly produced in each Convention state.
This solution would take the question of parentage out of the international sphere; parentage would be determined at the local level in the country of birth of the child. With parentage established, the resolution of citizenship will follow as a function of the laws of the intended parents' countries of citizenship.
The broad support of the Apostille Convention may make such a solution possible. "With currently 102 Contracting States, the Apostille Convention is the most widely ratified or acceded to Hague Convention; with several million Apostilles issued every year around the globe, it is also the most widely used of all the Hague Conventions." (59) However, the 1971 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, which could possibly be used to enable enforcement of court-ordered determinations of parentage, has not been widely ratified. (60) Even if this 1971 Convention were to be widely ratified, its applicability to international surrogacy arrangements would be questioned. The 1971 Convention excludes questions of family law, and allows for a public policy exception for the acceptance of foreign judgments. (61)
Another international instrument that could be implicated in the regulation of international surrogacy arrangements is the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (Child Protection Convention). (62) The Child Protection Convention provides a mechanism to avoid conflict of laws problems between nations in matters of parental responsibility. Specifically, the Child Protection Convention specifies which nation has jurisdiction over the attribution and exercise of parental responsibility in matters relating to children. (63) The Convention relies on the concept of "habitual residence" of the child to determine the nation which has jurisdiction, but also allows the nation where the child is located to have jurisdiction when the nation of habitual residence cannot be determined. (64) This Convention specifically excludes matters which establish a parent-child relationship, but does facilitate the acceptance of custody orders between nations. (65) The United States intends to ratify this Convention. (66) Although an imperfect solution, the Child Protection Convention could be useful in navigating the conflict of laws issues that arise in international surrogacy arrangements.
Direct regulation of the international surrogacy market as a proxy for other issues in the international private law sphere will have unintended consequences. It will almost certainly drive some people out of the market and into less desirable means of achieving parenthood. Further, regulation of the narrow issue of surrogacy will not address the structural challenges with international parentage decisions generally.
In the end, the practical problems with international surrogacy are grounded in conflicts of laws surrounding parentage, family structure, nationality, and immigration. Any international regulatory system in this area should be limited to a framework for open dialogue between nations about the reconciliation of these conflicts, particularly when the issues are not contested by the parties involved. In reality, the conflicts of family and immigration law are the issue, not surrogacy.
If we fear coercion and exploitation in the international surrogacy market, then each nation should consider developing an approach to protect all parties who participate in such arrangements. The definitions of "coercion" and "exploitation" may vary from society to society, and so each individual society is best equipped to define ways to protect its citizens against abuses. At the international level, a framework of cooperation to resolve conflicts of these society-dependent notions of coercion, exploitation, family, and citizenship may suffice to resolve the tensions in this market.
Bruce Hale, Esq. (1)
(1.) With contributions by Attorney Stephen Page.
(2.) See Hague Conference on Private Int'l Law, Projects Concerning the Children's Conventions, Maintenance, Adults, Cohabitation, Status of Children and International Family Relocation--Planning For 2012-2013 17, Prel. Doc. No. 6 (Mar. 2012), available at http://www.hcch.net/upload/wop/gap2012pd06_en.pdf (summarizing work in the fields of family law and international child protection).
(3.) "Market" and related terms are used here deliberately, despite the risk that discussing surrogacy in market terms may conjure up images of human commodification, a frequent criticism of modern surrogacy arrangements. This discussion addresses the market forces that react to regulation, and therefore relies on market terms for clarity.
(4.) See Kimberly D. Krawiec, Price and Pretense in the Baby Market, in Baby Markets: Money and the New Politics of Creating Families, 41 (Michele Bratcher Goodwin, ed., 2010).
(5.) See Declaration on Social Progress and Development, G.A. Res. 2542 (XXIV), 1 4, (Dec. 11, 1969) (expressing principles of social justice). See also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (declaring compulsory sterilization is a violation of the fundamental right to procreate); Meyer v. Nebraska, 262 U.S. 390, 398-99 (1923) (finding the 14th Amendment includes the right to "bring up children").
(6.) We can trace certain practices of surrogacy back into biblical times. See, e.g., Genesis 16, 30 (relating stories of women bearing children for others).
(7.) See Deborah L. Spar, The Baby Business: How Money, Science and Politics Drive the Commerce of Conception 85-88 (2006).
(8.) See Richard F. Storrow, Quests for Conception: Fertility Tourists, Globalization and Feminist Legal Theory, 57 Hastings L.J. 295, 301 (2005) (explaining reasons would-be parents travel internationally for fertility treatment).
(9.) See Jason Burke, India's Surrogate Mothers Face New Rules to Restrict 'Pot of Gold', The Guardian, Jul. 30, 2010, available at http://www.guardian.co.uk/world/ 2010/jul/30/india-surrogate-mothers-law.
(10.) See Angie Godwin McEwen, So You're Having Another Woman's Baby: Economics and Exploitation in Gestational Surrogacy, 32 Vand. J. Transnat'l L. 271, 287-96 (1999) (providing examples of the commercialization of gestational surrogacy). See also Iris Lebowitz-Dori, Womb for Rent: The Future of International Trade in Surrogacy, 6 Minn. J. Global Trade 329, 334 (1997) (identifying risk of exploitation of the international surrogacy market).
(11.) See McEwen, supra note 10 and accompanying text. As an example, there remains a strong domestic market for surrogacy in the United States despite the potential cost savings for intended parents to pursue surrogacy internationally. Id. Potential explanations for this include the desire of intended parents to participate more fully in the process and avoid legal complexity. Id. In addition, some intended parents may choose a higher-cost market for surrogacy over a lower-cost market in order to mitigate legal risk. Id.
(12.) See Lebowitz-Dori, supra note 10, at 338 (arguing the surrogacy market and adoption market are comparable).
(13.) See Krawiec, supra note 4, at 44-45 (noting factors that prevent effective movement between the two markets).
(14.) Specifically, gestational surrogacy--where the woman who gives birth to the child has no genetic connection to the child.
(15.) Compare Cal. Fam. Code [section][section] 7960-7962 (2012) (allowing surrogacy) with Embryonenschutzgesetz [ESchG] [The Embryo Protection Act], Dec 13, 1990, Bundesgesetzblatt, [BGBL. I] at 2746 (Ger.) (containing criminal penalties for creating a surrogate pregnancy).
(16.) See Australian Institute of Health and Welfare, Adoptions Australia 2010-2011, 5 (2011), www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=10737420773 (citing a number of factors contributing to potential delays in the process).
(17.) See Malcolm Farr, Deborra-Lee Furness' calls for adoption help that ministers never returned, news.com.au, (Nov. 9, 2011), http://www.news.com.au/national-news/ deborra-lee-furness-calls-for-adoption-help-that-ministers-never-returned/comments-e6frfkw9-1226190335342 (discussing bureaucratic obstacles delaying the process of adopting overseas children).
(18.) See Susan Markens, Surrogate Motherhood and the Politics of Re. production 176 (2007).
(19.) See International Surrogacy Arrangements: An Urgent Need for a Legal Regulation at the International Level, University of Aberdeen School of Law, http:// www.abdn.ac.uk/law/research/international-surrogacy-arrangements-151.php (last visited on Jul. 17, 2012) (providing research background for Trimmings and Beaumont). Trimmings and Beaumont were awarded a grant of more than GBP112,000 by the Nuffield Foundation in July 2010. Id. The purpose of the grant was to study private international law aspects of international surrogacy arrangements, ways to regulate the international surrogacy market, and to prepare a document that could help shape a future Convention on international surrogacy. Id. Trimmings and Beaumont's work is being done in cooperation with the Hague Conference on Private International Law. Id.
(20.) Katarina Trimmings & Paul Beaumont, International Surrogacy Arrangements: an Urgent Need for Regulation at the International Level, 7 J. Private Int'l L. 627, 630 (2011) (discussing concerns of surrogacy that warrant legislation in order to protect the rights of the parties involved).
(21.) E.g., Re X & Y (Foreign Surrogacy)  EWHC (Fam.) 3030 (Eng.) (twin children were delivered by a Ukrainian gestational surrogate for British intended parents, and both states denied citizenship to the children while claiming that the children were citizens of the other state).
(22.) See Trimmings & Beaumont, supra note 20, at 633.
(23.) See id. at 636.
(24.) For example, a recent case in which Germany and India disagreed about the citizenship status of twins born to an Indian surrogate for German intended parents was only resolved when the countries granted exceptions to the children. See Surrogate twins all set to fly to Germany, finally, Econ. Times, May 27, 2010, available at http://articles.economictimes.indiatimes.com/2010-05-27/news/27577615_1_surrogatetwins-german-couple-inter-country- adoption.
(25.) See In re Marriage of Buzzanca, 61 Cal. App. 4th 1410, 1429 (1998).
(26.) See Krawiec, supra note 4, at 49.
(27.) See John A. Robertson, Commerce and Regulation in the Assisted Reproduction Industry, in Baby Markets: Money and the New Politics of Creating Families, 191, 195-96 (Michele Bratcher Goodwin, ed., 2010) (discussing legal infrastructure supporting surrogacy arrangements).
(28.) See Ruby L. Lee, New Trends in Global Outsourcing of Commercial Surrogacy: A Call for Regulation, 20 Hastings Women's LJ. 275, 285 (2009) (attributing increase of "reproduction tourists" from certain countries to those countries' heavy regulation of the fertility industry).
(29.) See Storrow, supra note 8, at 306-07.
(30.) Trimmings & Beaumont, supra note 20, at 636.
(31.) Consider the scenario of a U.S. citizen living in the United Kingdom with her British husband. If she carries a child conceived with her husband's sperm and a donor egg from another British citizen, U.S. immigration law will not consider the resulting child a U.S. citizen should the family decide to relocate to the United States.
(32.) See Hague Conference on Private Int'l Law, Private International Law Issues Surrounding Status of Children, Including Issues Arising from International Surrogacy Arrangements, Prel. Doc. No 11, p. 21 (Mar. 2011), http://www.hcch.net/upload/wop/ genaff2011pd11e.pdf.
(33.) Certainly, "traditional" surrogacy is far closer to adoption than is gestational surrogacy, but there is still a significant distinction.
(34.) Trimmings & Beaumont, supra note 20, at 645.
(35.) Id. at 644.
(36.) Id. at 640.
(37.) In re Baby M., 537 A.2d 1227, 1256 (N.J. 1988) (holding a surrogate contract conflicted with state public policy).
(38.) Id. at 1257-1259 (determining ultimate custody of the child in question without regard to any legal errors committed by the lower court).
(39.) Trimmings & Beaumont, supra note 20, at 641.
(40.) Id. at 642.
(41.) See Declaration on Social Progress and Development, supra note 5, at f 4.
(42.) Supporters of the parental fitness requirement often raise the spectre of individuals creating a child through surrogacy for the express purpose of exploiting the child in some way, seemingly ignoring the reality that children born "naturally" are exploited with alarming regularity today. It is no more likely that someone will create a child through surrogacy for the express purpose of exploitation than via any other means. In fact, it seems less likely that surrogacy will be used for this purpose; if one is engaged in commodification of children to such an extreme, there are far more cost-effective ways of procuring them.
(43.) See Lucie van den Berg, Victorian Adoption Process Likened to Criminal Investigation, Herald Sun, (Nov. 10, 2011) available at http://www.heraldsun.com.au/ news/victoria/victorian-adoption-process-likened-to-criminal-investigation/story-fn7x 8me2-1226190850588.
(44.) See Kirstin Murray, Celebrity Campaign to Reform Adoption Laws, Australian Broadcasting Corporation, (Mar. 13, 2008), available at http://www.abc.net. au/7.30/content/2007/s2188906.htm.
(45.) Trimmings & Beaumont, supra note 20, at 639.
(46.) Id. at 641.
(47.) See Robertson, supra note 27, 195-196.
(48.) See Trimmings & Beaumont, supra note 20, at 643.
(49.) See McEwen, supra note 10, at 286. "Debate centers around two distinct issues: commercialization, or the fact that a surrogate is paid for her services, and exploitation, which is the idea that surrogates are paid too little for their services". Id.
(50.) See Trimmings & Beaumont, supra note 20, at 644.
(51.) See Spar, supra note 7, at 30 (arguing that "[i]n this market, therefore, price acts harshly as a constraint on demand").
(52.) See American Society for Reproductive Medicine, Financial Compensation of Oocyte Donors, 88 Fertility and Sterility, No. 2, 305 (Aug. 2007).
(53.) See Trimmings & Beaumont, supra note 20, at 646.
(54.) See Johnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993).
(55.) See Charles P. Kindregan, Jr. & Maureen McBrien, Assisted Reproductive Technology: A Lawyer's guide to Emerging Law and Science (2nd ed. 2001).
(56.) See Trimmings & Beaumont, supra note 20, at 646.
(57.) Reproductive substitution is the idea that the gestational carrier generally cannot have children of her own during the time that she is participating in the surrogacy process. In effect, the surrogacy process shifts the benefit of the reproductive capacity of the gestational carrier to the intended parents.
(58.) Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents art. 1-2, Oct. 5, 1961, 33 U.S.T. 883, 527 U.N.T.S. 189 (discussing procedures for document authentication).
(59.) Hague Conference on Private Int'l Law, Conclusions And Recommendations of the Commemoration of the 50th Anniversary of the Apostille Convention and Third Regional Meeting on the E-App for Europe Project 2 (Apr. 2012), available at http:// www.hcch.net/upload/wop/gap2012info08en.pdf (discussing participants and direction of Apostille Convention).
(60.) Hague Conference on Private Int'l Law, Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, Status Table, available at http://www.hcch.net/index_en.php?act=conven tions.status&cid=78 (summarizing ratification of Convention).
(61.) Id. at art. 1, 5, (permitting a state to refuse enforcement if the decision would be incompatible with that state's public policy).
(62.) Hague Conference on Private Int'l Law, Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Paternal Responsibility and Measures for the Protection of Children art. 1, Oct., 1996, 35 I.L.M. 1391, available at http://www.hcch.net/upload/conventions/txt.34en.pdf (outlining objectives of convention).
(63.) Id. (determining which state's law operates to protect children under 18 and their property).
(64.) Id. at art. 5-6 (providing the state in which each child resides typically has jurisdiction to resolve claims).
(65.) Id. at art. 4(a) (stating the convention does not apply to establishment or contesting of a parent-child relationship).
(66.) Ann Laquer Estin, International Family Law Desk Book 151 (2012) (collecting treatises, case law, and secondary sources regarding transnational family law issues).
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|Publication:||Suffolk Transnational Law Review|
|Date:||Sep 22, 2013|
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