The last ten years have witnessed rapid growth in the practice of international commercial surrogacy.Footnote 1 This has created serious legal and ethical dilemmas with respect to the nationality and parentage of children conceived under these agreements and the potential exploitation of not only surrogate mothers, but also the intending (or commissioning) parents.Footnote 2 These dilemmas have been examined by the Hague Conference on Private International Law, whose Permanent Bureau has prepared two preliminary reportsFootnote 3 which seek to address ‘the practical needs in the area’Footnote 4 and examine whether a multilateral convention might address the private international law issues arising under international surrogacy arrangements.
To date public international law considerations have been largely overlooked by the Permanent Bureau. The ‘fundamental rights and interests of children’ and various international human rights instruments have been identified as ‘needs to be met’ in any multilateral convention.Footnote 5 However, the reports of the Bureau have failed to examine what international human rights law would actually require in the context of international commercial surrogacy. They are not alone in this approach. Although references to human rights and children's best interests are often mentioned in the academic commentary in this area, their treatment tends to be incidental and superficial rather than substantive.Footnote 6
This paper aims to address this gap by examining international commercial surrogacy arrangements through the prism of international human rights. It defines this practice as an arrangement whereby the intending parent(s) to pay the surrogate mother, directly or via an intermediary, financial remuneration, or any other form of consideration in excess of the actual out-of-pocket expenses incurred by the surrogate, such as medical fees and charges.Footnote 7 It argues that the right to privacy is sufficiently broad to encompass an entitlement to enter a surrogacy arrangement. However, States may limit this entitlement where it is necessary to protect the rights of others and/or protect public morality. Within this context, commercial surrogacy is problematic for three reasons.
First, there is a strong case that it amounts to the sale of a child under Article 35 of the Convention on the Rights of the Child (‘CRC’)Footnote 8 and the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (‘CRC Optional Protocol’).Footnote 9 Second, there is a reasonable argument that it is morally objectionable because it reinforces gender inequality. Finally, the regulation of such arrangements is unlikely to provide sufficient protection against the potential exploitation of surrogate mothers (at least in developing States). If any of these arguments were accepted, international human rights law would require States to prohibit commercial surrogacy. Moreover, even if these arguments remain contentious (and it is conceded that they do), the margin of appreciation accorded to States when implementing their human rights obligations is such that they could still rely on these arguments to justify the prohibition of commercial surrogacy.
This conclusion presents grave implications for any potential multilateral treaty that would regulate international commercial surrogacy unless it were to prohibit the practice, in which case its utility would be limited given the virtually non-existent demand for international altruistic surrogates. This is because it would be incongruous and arguably inconsistent with its obligations under international law, for a prohibitionist State to ratify a treaty which facilitates and recognizes a commercial surrogacy undertaken in a permissive State. Permissive States might be willing to ratify such a treaty. However, there are few such StatesFootnote 10 and the reality is that the increase in international commercial surrogacy is being driven by the demand for children from intending parents living in prohibitionist States.Footnote 11
This creates the prospect that it may be both inconsistent with public international law and impractical to envision the adoption of a multilateral treaty that would address the complex issues arising from international commercial surrogacy arrangements—short of an absolute ban, as is the case with commercial adoptions under the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.Footnote 12 Regardless, any multilateral treaty would take time to negotiate. In the interim, therefore, prohibitionist States must develop a principled and pragmatic response to the ethical and legal dilemmas that arise when their nationals arrive at the border with a child of uncertain parentage and nationality.
In light of these complex issues, this paper is divided into three parts. Part I identifies the relevance of international human rights law and the rights of intending parents. Part II identifies the potential threats arising from a commercial surrogacy to the rights of children and surrogate mothers and examines whether these threats can be accommodated via regulation or prohibition. Particular attention is given to whether commercial surrogacy involves the sale of a child and whether it is necessarily exploitative of surrogate mothers or reinforces gender inequality. Part III provides guidance with respect to the interim measures required of prohibitionist States in addressing the issues associated with international commercial surrogacy when these issues present themselves at a State's border.
I. MORE THAN JUST ‘NEEDS TO BE MET’: THE RELEVANCE OF AND RELEVANT HUMAN RIGHTS
A. The Relevance of Human Rights
As noted above, the Permanent Bureau of the Hague Conference on Private International Law has noted the need to consider those international human rights that are relevant to international surrogacy.Footnote 13 This reference to international legal obligations as ‘needs to be met’ is problematic for three reasons. First, international human rights instruments are not merely ‘needs to be met’. They impose binding international legal obligations that States parties must comply with in good faith.Footnote 14
Second, it risks marginalizing the role of public international law in resolving the issues associated with international surrogacy. To be fair, the Permanent Bureau's report does acknowledge the relevance of international human rights to a private law multilateral instrument, however it overlooks the threshold question (addressed below) of whether surrogacy arrangements are compatible with human rights law. This creates the impression that human rights are relevant only to a permissive regulatory regime. The International Law Commission has stressed the need for coherence, rather than fragmentation, within international law.Footnote 15 As such, any approach to international surrogacy must be coherent with and informed by international human rights law.
A further problem is the tendency of the Permanent Bureau to confine the role of human rights discourse to its normative function and in doing so overlook its instrumental capacity. In other words, the Permanent Bureau risks seeing human rights purely as standards to be met, whilst ignoring the capacity of this discourse to offer a means by which to conceptualize international surrogacy and provide a methodology for resolving competing rights. As such, the approach of the Permanent Bureau tends to conceive of human rights as ends to be protected when developing a private international law response to international surrogacy, rather than as means by which to inform this response, described below as a substantive rights approach.
Finally, to refer to human rights as merely ‘needs’ overlooks not just their legal status but also their moral significance. The human rights agreed upon by States in international treaties reflect an, admittedly incompletely theorized,Footnote 16 moral conception of the relationship between State and individual, and what it means to live a life of dignity and self-worth.Footnote 17 As such, this discourse can play an informative role in resolving the ethical dilemmas associated with international commercial surrogacy arrangements.Footnote 18 Indeed, this role is consistent with the growing trend to use human rights as a proxy for the language of ethics.Footnote 19 Thus, having made a case for the relevance of international human rights to international commercial surrogacy, consideration must now be given to the implications of a substantive engagement with the relevant rights.
B. The Need to Adopt a Substantive Rights Approach
The use of human rights to resolve complex social issues falls along a spectrum spanning six approaches, which extend from invisible, incidental, selective, superficial, and rhetorical approaches to a substantive rights-based approach.Footnote 20 An invisible rights-based approach fails to identify the relevance of rights to an issue. In the context of international commercial surrogacy, for example, alternative discourses including ethics, religion, or a political ideology such as liberalism, might be adopted.Footnote 21 An incidental rights-based approach involves identification of the relevance of human rights but does not consider them essential to the conceptualization or resolution of the issue. The Permanent Bureau's reference to human rights as ‘needs to be met’ reflects elements of this approach. However, its reference to specific rights pertaining to a child suggests that human rights may be more than merely incidental to its future work.
A selective approach involves significant rather than incidental engagement with rights. However, engagement is selective in the sense that a particular right or rights are identified, whilst other relevant rights are ignored. This usually occurs where the right is selected in order to support or defend a particular decision or approach. For example, opponents of international commercial surrogacy might cite a child's right to know his or her parents (Articles 7 and 8 of the CRC) to argue against this practice, without considering the rights of the intending parents or surrogate mother. Alternatively, proponents might invoke the right to reproductive health under Article 12 of the International Covenant on Economic, Social and Cultural RightsFootnote 22 or the right to found a family under Article 23(2) of the International Covenant on Civil and Political RightsFootnote 23 without considering the potential impact of surrogacy on the rights of children. Under this approach, a right is selected because it resonates with the particular agenda of the decision-maker or advocate.
A superficial rights-based approach involves the identification of the relevance of rights to an issue, which then become a core element in the reasoning offered to resolve the issue. However, the ostensible engagement with rights discourse remains superficial because there is a failure to consider the scope and nature of the rights in question or a lax assessment of how these must be balanced against competing considerations. This is a common feature of the commentary regarding international commercial surrogacy.Footnote 24 A rhetorical approach shares the analytical deficiencies of a superficial approach; however, greater emphasis is placed on the language of rights. Rights, under a rhetorical approach, are cited as the organizing principle around which issues are to be resolved, and are constantly referenced, albeit rhetorically.
In contrast, a substantive rights-based approach has three distinct features: (a) the relevant issues are conceptualized in terms of the rights engaged; (b) the content of these rights and their concomitant obligations are examined; and (c) an accepted rights-based methodology is adopted and used to resolve competing rights claims.Footnote 25 What then does this approach look like in the context of international commercial surrogacy?
C. The Relevant Rights of the Intending Parent(s)
From the perspective of the intending parent(s),Footnote 26 the right to reproductive health, the right to found a family and the right to respect for privacy and family life are commonly identified as being relevant. The rights to non-discrimination under Articles 2 and 26 of the ICCPR are also relevant to homosexual couples or individuals denied access to the services required to facilitate a surrogate pregnancy in circumstances where a heterosexual couple would have access to such services.Footnote 27 But does the substantive content of these rights provide an entitlement to intending parents to enter into a surrogacy agreement?
It is questionable whether the right to reproductive health supports such an entitlement. This right is largely concerned with empowering women with respect to their reproductive health and for ensuring access to sexual and reproductive health education, information about the healthy spacing of children and an entitlement to have a healthy sex life.Footnote 28 As such, it is difficult to sustain the argument that an intending mother who is unable to bear children may draw upon her right to reproductive health to enlist the reproductive capacity of another woman.
The scope of the right to found a family has been largely ignored. Significantly, the meaning of ‘family’ is not confined under international law to the traditional nuclear familyFootnote 29 and would extend to the creation of the modern family formations now possible as a result of advancements in reproductive technology. As such, a surrogacy arrangement might be perceived as an exercise of the right to found a family.
However, even if this argument were not accepted the scope of the right to respect for privacy and family under Article 17 of the ICCPR is such that it provides intending parents with an entitlement to enter surrogacy arrangements. This proposition finds support in a recent decision of the Grand Chamber of the European Court of Human Rights in which the court reiterated that ‘the notion of private life … is a broad concept which encompasses, inter alia the right to establish and develop relationships with other human beings’.Footnote 30 It went further to declare that it also encompasses ‘the right to respect for the decisions both to have and not to have a child’Footnote 31 and that ‘the right of a couple to conceive a child and to make use of medically assisted procreation for that purpose is also protected by [the right to privacy] as such a choice is an expression of private and family life’.Footnote 32
Although these dicta were furnished within the context of assisted pregnancy rather than surrogacy, the underlying logic can be extended to such arrangements because consensual surrogacy arrangements reflect the will of the intending parents and surrogate mother to enter into a personal relationship. The fact that the purpose of this relationship is to create and bear a child is arguably immaterial in assessing whether the relationship is protected by the right to privacy. Indeed, this view is consistent with the fundamental liberal principle that consenting persons should be free to enter into any relationships which cause no harm to others.
Importantly, international human rights law reflects this principle by providing that the right to respect for privacy and family cannot be subject to arbitrary or unlawful interference.Footnote 33 According to the Human Rights Committee (the body of independent experts responsible for monitoring implementation of the ICCPR), ‘the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances’ (emphasis added).Footnote 34 When assessing the reasonableness of any interference, two broad issues fall for consideration: whether the interference responded to a pressing social need or pursued a legitimate aim; and whether the measures used to achieve that aim were proportionate or justified.Footnote 35 An aim will be legitimate when its purpose is to secure the recognition and respect of the rights of others and/or to protect morality, public order or the general welfare of a State.Footnote 36 Measures will be deemed proportionate when there is a rational connection between the measure taken to achieve the aim (which generally requires evidence) and where no less restrictive measures are reasonably available to achieve the aim.Footnote 37
This means that if the right to respect to privacy and family life encompasses a right to enter surrogacy arrangements, this right remains subject to a State's capacity (and potential obligation) to restrict this where it is reasonably necessary to (a) protect the rights of persons other than the intending parents and/or (b) protect public morality. This in turn requires States to consider competing rights and the broader theme of public morality in its response to international commercial surrogacy. It is to these issues that I now turn.
II. Identifying the Competing Rights and striking the proper balance
A. The Child's Perspective
From the child's perspective a vast range of rights, principally found in the CRC, are potentially relevant in the context of commercial surrogacy. For current purposes these rights are grouped under three broad themes—identity and relationship rights, development rights and protection rights. An examination of these rights reveals that, in theory, regulation will address many of the potential violations of a child's rights. However, there is a strong argument to suggest that commercial surrogacy arrangements amount to the sale of a child, in which case, international human rights law requires that this practice be prohibited.
1. Identity and relationship rights
The CRC grants children the rights to know and be cared for by their parents and to preserve their identity including family relations.Footnote 38 It also attaches significant consequences to those persons identified as parents since they have both responsibilities to care for a child and an entitlement to have their own rights with respect to the child protected.Footnote 39 Thus, international law attaches particular importance to the parent–child relationship. However, it offers no definition of such terms as ‘parent’, ‘identity’ or ‘family relations’. This is unproblematic in the context of a child conceived without assisted reproductive technology by two heterosexual partners. In such circumstances, the ordinary meaning of ‘parents’ reflects the two individuals with a direct biological, gestational and social nexus with a child.
Modern reproductive technology, however, allows for the involvement of multiple persons in a decision to create and care for a child. In the context of a surrogacy arrangement, a minimum of three persons (the gestational/surrogate mother and the intending parents if their genetic material is used to create the embryo) and potentially five (the surrogate mother, biological mother, biological father and two commissioning parents) may each have a distinct role. Should all of these persons be recognized as parents? Such an approach would certainly challenge the dualist and heterosexist conception of parenthood that dominates most legal systems. But is such an approach required by international law?
Although the Committee on the Rights of the Child has not addressed this issue specifically, it has acknowledged that international law accommodates and recognizes diverse family formations.Footnote 40 This opens up the possibility for recognition of more than two parents and that they need not be in a heterosexual relationship. Under this model, a gestational mother in India, a biological mother from the Ukraine who donated her ova, a biological father from the USA who donated his sperm and commissioning parents from Australia might all be recognized as parents.
If such a model were accepted, it would be practically impossible for each parent to physically care for the child in the sense anticipated by Article 7 of the CRC. But Article 7 anticipates only that care be provided so far as possible. This qualification is a concession to the reality that, however defined, a child's parents may either be unknown or have no desire to care for the child. Thus, in the context of a surrogacy, where the gestational mother and biological parents have no desire to care for the child, there would arguably be no violation of the child's rights under Article 7, since this would not be possible.
It would, however, be possible for the child to know of, if not know personally, the identity of his or her parents. This possibility exists because it would be possible and not unreasonable for a State to insist that any organization seeking to facilitate surrogacy arrangements maintain records of the individuals involved.Footnote 41 This information might then be provided to the child at an appropriate time. Importantly, under this model it would be possible to ensure that surrogacy arrangement did not violate the child's right to know his or her parents.
Opponents of a multiple parentage model would argue that it would create confusion with respect to the legal consequences of parentage. In response, it would be sufficient to ensure that domestic law provides different consequences for different types of parentage. Thus, for example, the biological parents and surrogate mother might have no obligations or rights with respect to the child, and the traditional rights and obligations associated with biological parenthood would presumptively flow to the intended parents. Again, this scenario would be consistent with the child's rights under Article 7 of the CRC and would require States merely to regulate rather than prohibit surrogacy arrangements.
An alternative approach is the ‘intentionalist’ approach to parentage whereby the relevant intentions of each individual will be used to identify the parents presumptively. This approach is often favoured by commentators on the basis that use of a ‘biological’ or ‘gestational’ approach to determine parentage would exclude intending parents from being recognized as parents.Footnote 42 However, from the child's perspective, this approach is problematic for two reasons.Footnote 43
First, it insists upon a dualist paradigm of parenthood, which is inconsistent with the lived experiences of children in other family relationships. For example, children born using assisted reproductive technology or adopted or on permanent care orders may maintain a relationship with their biological parents, whereas children whose parents have divorced and remarried will have biological and new step-parents. Thus, it is inappropriate to eschew alternative conceptions of parenthood in the context of surrogacy arrangements whilst these are accepted elsewhere. Moreover, this approach is unnecessary because, as outlined above, concerns regarding a multiple parenthood model can be addressed by regulations that presumptively determine the obligations and entitlements of each parent.
a) A child's right to know his or her identity
Even if the dualist model were preferred, States would still be obliged to ensure that children conceived under international surrogacy arrangements had access to information about their biological and gestational ‘parents’ by virtue of the right to preserve their identity. This right is expressly granted by Article 8 of the CRC and also arguably falls within the scope of the right to respect to privacy and family life under Article 16. Although it has been argued that the focus of Article 8 is on mechanisms to avoid children from being forcibly removed from their parents,Footnote 44 this view is unnecessarily restrictive.Footnote 45 States are obliged under international law to take measures to preserve a child's identity and the Committee on the Rights of the Child has stressed that this extends to maintaining critical records, including family details.Footnote 46 It has also noted a contradiction between the child's right to know his or her origins and the confidentiality of sperm donors.Footnote 47 This position indicates a strong presumption in favour of the full disclosure of a child's biological parents.
Moreover, as Freeman has argued, the right to identity ‘is a right not to be deceived about one's true origins’.Footnote 48 Thus, even if a gestational mother has no genetic connection to the child she is carrying, knowledge of her identity remains important and relevant to the child's origins and sense of self.Footnote 49 To find otherwise would be to marginalize her significant role in bringing the child into being, which is surely a vital element of the child's identity.
The emerging jurisprudence on the right to respect for privacy further suggests that children created under surrogacy arrangements are entitled to know the identity of the persons involved in their creation. For example, according to the European Court of Human Rights, the right to privacy ‘covers the physical, moral and psychological integrity of a person… [and] can sometimes embrace aspects of an individual's physical and social identity’ (emphasis added).Footnote 50 Thus the right to privacy has been said to constitute a right to individual self-determination.Footnote 51 Although the European Court of Human Rights has not affirmed this position with respect to donor-conceived individuals (or indeed surrogacy arrangements), it has endorsed the notion that ‘the right to an identity, which includes the right to know one's parentage, is an integral part of the notion of private life’.Footnote 52 Moreover, in Gaskin v United Kingdom, the European Court held that the right to privacy of a young man denied access to information about the identities of those who cared for him while in State care, was violated. In arriving at this position, the Court affirmed the finding of the European Commission, which had declared that:
Respect for private life requires that everyone should be able to establish details of their identity as individual human beings and that in principle they should not be obstructed by the authorities from such very basic information without specific justification.Footnote 53
The Court further explained that ‘persons in the situation of the applicant have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development’.Footnote 54
This principle was extended by the English High Court in Rose v Secretary of State for Health, in which donor-conceived individuals sought access to non-identifying information to provide a ‘right to obtain information about a biological parent who will inevitably have contributed to the identity of his child’.Footnote 55 This approach is convincing. Indeed, it would be disingenuous to quarantine the biological and gestational dimensions of a person's identity from their social, physical, moral and psychological identity. Thus, if it is accepted that an individual's right to privacy includes the right to establish the details of their identity, it follows that enjoyment of this right will depend upon access to any information of significance to their identity, including genetic and gestational origins.Footnote 56 This proposition does not, however, require States to prohibit commercial surrogacy. Rather, they must put in place regulatory structures which ensure appropriate record-keeping and mechanisms to enable children to access information regarding those individuals who played a genetic or gestational role in their creation.
b) A child's cultural identity
Article 8 of the CRC expressly provides that a child's right to an identity encompasses his or her nationality. Moreover, the CRC is generally concerned with the cultural dimensions of a child's identity and the need to maintain children's connection with their own culture.Footnote 57 As such, a child's identity extends beyond genetic origins to include culture. As Woodhouse has explained:
children's right to identity includes a right to claim their ‘identity of origin’ defined as a right to know and explore, commensurate with her evolving capacity for autonomy, her identity as a member of the family and group into which she was born. The trusteeship model of adult power implies that we adults … have a duty to recognize and protect the child's access to this heritage as well as recognizing and protecting the young child's need for continuity in her psychological or social family.Footnote 58
International surrogacy arrangements, which by definition involve children's removal from their countries of birth, threaten children's capacity to develop such relationships and understand their cultural origins. However, as the experience of children subject to intercountry adoption demonstrates, a child can still have a meaningful understanding of his or her cultural identify where he or she lives in another country. The counterpoint to this position is that in the case of intercountry adoptions, this practice is only permitted when it is not possible to secure a domestic placement. In contrast, children born under international surrogacy arrangements are knowingly created with the expectation that they will never live in their countries of birth. Thus, there is an argument that it would be within a State's margin of appreciation to prohibit international surrogacies on this basis.
2. Developmental rights
a) Does separation from the gestational mother harm a child?
Article 3 of the CRC requires that the best interests of the child be a primary consideration in all matters concerning them. Article 6(2) further grants children the right to survival and development, which extends to their physical, psychological, social and emotional development. In the context of surrogacy arrangements, there is a tendency to assume that a child's separation from his or her gestational mother is harmful to his or her development and therefore contrary to his or her interests. However, assumptions are not a sufficient basis upon which to justify interference with a right and generally speaking, evidence is required to establish a rational connection between the aim sought and the measure adopted to achieve the aim. In the context of international surrogacy, prima facie evidence of some harmful effect on children's development would be required to justify the prohibition of this practice on the ground that it violates Articles 3 and 6(2) of the CRC.
At present very little research exists in this area. Significantly, the few studies that have been done indicate that such arrangements are not harmful to children's development.Footnote 59 However, the results of such studies are of limited utility since they are confined to a self-selected sample which are more likely to report positive consequences; they are restricted to non-commercial surrogacy and therefore fail to address the potential psychological impact associated with what may be conceived of as commodification and sale of a child; they are confined to domestic arrangements and do not therefore examine potential impacts on the cultural and psychological development of a child born under an international surrogacy arrangement. Moreover, the positive results often coincide with the fact that a child has been able to maintain a relationship with his or her surrogate mother; an option that is rarely, if ever, contemplated under an international arrangement. Finally, such studies are confined to younger children who arguably lack the maturity to appreciate the contentious nature of their creation, which may affect their psychological development later in life.
The evidence that domestic non-commercial surrogacy arrangements are not harmful to children may provide States with the discretion to permit such arrangements, subject to ongoing monitoring and evaluation. However, it would be premature to use these studies as evidence that international commercial surrogacy causes no harm to children. On the contrary, the uncertainty with respect to the developmental impact on children born under such arrangements is such that it would be within a State's margin of appreciation to prohibit such arrangements.
Importantly, this position would find support in three sources. First, the comparative lived experience of children subject to intercountry adoptions has led to the prohibition of commercial adoptions and the principle that a child will only be adopted into another State if adoption within his or her birth State is incompatible with the child's best interests.Footnote 60 Second, the prohibition of the sale of a child under the CRC and the Optional Protocol on the Sale of Children, as detailed below, arguably extends to commercial surrogacy arrangements. Third, the moral concerns regarding the commodification of children and exploitation of surrogate mothers—both of which are examined below. These arguments do not offer the objective evidence usually required to justify the limitation of a right. The best interests principle, however, allows a precautionary approach whereby restrictive measures are acceptable, provided that there are reasonable grounds to believe that they are required to protect children's best interests.Footnote 61
b) Must intending parents be subject to a suitability assessment?
The other factor to be considered when assessing a child's developmental rights are the parents' obligations to guide the child in the exercise of his or her rights; to provide the child with an appropriate standard of living; and to safeguard the child's best interests.Footnote 62 This raises an issue of whether States must assess the capacity of intending parents to satisfy these obligations. Such an assessment is fundamental in the context of adoption and a determination of suitability to parent is a prerequisite for a lawful intercountry adoption under the Hague Convention on Intercountry Adoption.Footnote 63
Given the perceived similarity between international adoptions and international surrogacy arrangements, it has been suggested that the parenting ability of intending parents should also be subject to assessment.Footnote 64 Intending parents and proponents of surrogacy would presumably object to such measures on the grounds that traditional family formations are not subject to such a requirement and that adoptions can be distinguished from surrogacy arrangements on a number of grounds. For example, surrogacy will invariably involve a genetic connection between at least one intending parent and the child, and the child's creation will have been intentional rather than accidental.
These arguments aside, when viewed from a human rights perspective, an assessment of parental suitability might be considered to interfere with the right to privacy and family life. As such, it would need to be justified as a proportionate measure to achieve a legitimate aim. The aim here would be to protect the child's rights. Whether an assessment of parental suitability was proportionate would largely depend on the nature and extent of the assessment. There is no need to examine this question further here, other than to note that although this issue may be contentious, it would arguably fall within a State's margin of appreciation to insist upon such an assessment. From a purely practical perspective, however, it would be possible, though costly and difficult for a permissive State to assess the parental suitability of intending parents who are resident in a prohibitionist State.Footnote 65 Moreover, it would be incongruous for a prohibitionist State to assume responsibility for an undertaking of a suitability assessment on behalf of the permissive State.
3. Protection rights
There are at least three protection rights relevant to children created under a surrogacy arrangement—the prohibition against discrimination; the protection against all forms of violence and abuse; and the prohibition against the sale of children. Regulation will be capable of securing the first two, however only the prohibition of international commercial surrogacy will suffice if such arrangements amount to the sale of a child.
B. Non-Discrimination
Article 2 of the CRC requires States to protect children born under surrogacy arrangements from discrimination on the basis of either their own ‘status’ or that of their parents. Discrimination is most likely to arise in the context of uncertainty over a child's parentage or nationality, which causes the child to be deprived of entitlements enjoyed by other children whose parentage and nationality are not contested. Importantly, mitigating the risk of discrimination does not demand the prohibition of international commercial surrogacy, simply measures to ensure that children who are born under such arrangements do not experience discrimination (direct or indirect) as a consequence of those arrangements.
C. Protection against Violence and Harm
As noted above, international law requires parents to care for their children and States to take measures to ensure intending parents are able to satisfy this obligation. International law further requires States to protect children from violence, abuse or neglect. Although the evidence indicates that intending parents are more than capable of parenting,Footnote 66 isolated incidents involving children born under such arrangements indicate that this is not always the case.Footnote 67
Two points are noteworthy here. First, there is always the risk that children will be at risk of harm when placed in the care of adults. Second, this risk is not peculiar to surrogacy arrangements and therefore provides no basis upon which to prohibit them. It simply requires States to take reasonable measures to ensure that intending parents do not present a direct threat to a child's health. This risk might arise if, for example, either parent had prior convictions for sexual or physical offences. Such concerns could be identified by, for example, the requirement of a criminal record check, which, although contentious,Footnote 68 is less onerous than the prospect of a parental suitability assessment.
D. The Sale of a Child
International law prohibits the sale of children.Footnote 69 But do commercial surrogacy arrangements amount to the sale of a child? Article 2(a) of the Optional Protocol to the CRC on the Sale of Children provides that:
Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.
But what is the scope and meaning of the terms within this definition? The interpretation of any human rights treaty is an imprecise task that ultimately rests on the persuasiveness of the interpretation offered.Footnote 70 At the same time, the starting point for any interpretive exercise must be Article 31 of the Vienna Convention on the Law of Treaties which provides that ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.Footnote 71
The ordinary meaning of terms such as ‘transfer’, ‘remuneration’ and ‘consideration’ indicates that a commercial surrogacy will fall within the definition of the sale of a child. Put simply, such an arrangement contemplates that a child will be carried to term and delivered by one person (the surrogate mother) and given (transferred) to another (the intending parent(s)) in exchange for money (remuneration). But interpretation is rarely a simple exercise and this definition raises several interpretative dilemmas. For example, does the purpose of the ‘sale’ matter? Does it matter if the transferors and/or transferees have a biological connection with the child? What does ‘transfer’ mean and is a child actually transferred under a commercial surrogacy arrangement? Finally, is the remuneration paid ‘for’ the transfer of the child or merely ‘for’ the service of gestating a child? I turn now to each of these questions.
E. Does the Purpose of the Arrangement Matter?
Article 3 of the Optional Protocol provides that:
Each state shall ensure that as a minimum the following acts … are fully covered under its criminal law whether such offences are committed domestically or transnationally or on an individual or organized basis:
(i) offering, delivering or accepting by whatever means a child for the purpose of:
a. sexual exploitation of the child;
b. transfer of the organs of the child for profit;
c. engagement of the child in forced labour.
This list is non-exhaustive and therefore does not prescribe every act which may amount to the sale of child. Each activity, however, clearly contemplates the exploitation and degradation of the child. In contrast, the intended purpose of commercial surrogacy is non-exploitative and indeed it is anticipated that the intending parents will provide appropriate care and support for the child.
It might therefore be argued that the purpose of the Optional Protocol is confined to the exploitative transfer of children, which would exclude commercial surrogacy arrangements. There are three problems with this argument. First, commercial surrogacy arrangements might be argued to be inherently exploitative because they violate the child's dignity (this issue is addressed in detail below). Second, neither the text of the Optional Protocol, nor its drafting history support this argument. The text of Article 2 does not refer to ‘exploitative acts’, but is expressed in exceptionally broad terms to proscribe ‘any act’ involving the transfer of a child. This suggests that the purpose of the transfer is irrelevant. This issue was expressly considered during drafting and a broader and inclusive definition for the sale of a child was preferred.Footnote 72 Finally, Article 35 of the CRC explicitly requires States to take all appropriate national, bilateral and multilateral measures to prevent … the sale of … children for any purpose or in any form. There is no ambiguity in the phrase, ‘for any purpose or in any form’, which tends to indicate that under international law the non-exploitative nature of a commercial surrogacy arrangement is irrelevant when assessing whether it amounts to the sale of a child.
Curiously, there was no mention of commercial surrogacy during the drafting of either the CRC or the Optional Protocol. Moreover, neither the Committee on the Rights of the Child nor the UN Special Representative on the Sale of Children appears to have mentioned this practice. This raises a question as to whether this silence can be taken to indicate that States and human rights monitoring bodies are not concerned about international commercial surrogacy. However, such a conclusion would be premature for four reasons. First, international commercial surrogacy was virtually non-existent at the time the CRC was drafted and remained minimal during the drafting of the Optional Protocol. Indeed the ‘booming global surrogacy “business” has only ‘evolved (rapidly) within the last decade’.Footnote 73 Arguably therefore, it was not an issue that warranted close discussion during the 1980s and 1990s. Second, the drafting history of the Optional Protocol confirms that States wanted an expansive definition of the sale of children to cover activities beyond those contemplated at the time of drafting. Third, despite States' silence during drafting, only a handful of States now explicitly allow international commercial arrangements while the vast majority prohibit the practice.Footnote 74 Thus, there is little scope to argue that if it were drafted today, the Optional Protocol would include a different definition of the sale of children, which would exclude commercial surrogacy. Current State practice indicates that this would not be the case. Finally, limited significance should be read into the silence of human rights monitoring bodies, which are preoccupied with the most exploitative and harmful ways in which children are sold and trafficked. As such, their failure to condemn a particular practice should not be interpreted as an indication of tacit approval.
F. Is This Identity of the Persons Involved in the Transfer of a Child Relevant?
The text of the Optional Protocol does not refer to the identity of the person transferring a child. Rather, it refers simply to ‘any person’. As such there is no basis to argue that, for example, a gestational mother who was also the biological mother would have the right to transfer a child to the genetic father for remuneration, or alternatively, that the gestational mother who was not the biological mother of the child, would be entitled to transfer the child to an intending parent on the basis that he or she was a biological parent. If the transfer of the child is ‘for’ remuneration or any other form of consideration, the fact that the transferor and/or transferee may have a biological connection to the child is irrelevant under international law.
Commentators often take a different view where the recipient of the child is the biological father. In such circumstances, the biological connection is considered to provide an entitlement to custody. Two points need to be stressed in response to this position. First, it reflects a proprietary conception of the relationship between a man and his genetic offspring, which is inconsistent with the shift towards a rights-based conception of the relationship between children and their parents. As Hill explains, persons may have ownership in their genetic material (sperm and ova) but they do not have ownership in any creation produced with this material.Footnote 75 As such, a biological connection does not create a proprietary right in a child. Second, even if it did, it is the presence of remuneration or other consideration that causes a commercial surrogacy arrangement to fall foul of the prohibition on the sale of a child under international law. A biological connection to the child offers no defence if the transfer is for remuneration or other consideration.Footnote 76
G. Is a Transfer in Ownership Necessary for a ‘Sale’ of a Child?
Advocates of commercial surrogacy often argue that it does not constitute a sale because it does not involve the transfer of ownership of the child.Footnote 77 This argument is usually based on the premise that, unlike the sale of other goods, commercial surrogacy does not allow intending parents to exercise the rights of exclusive possession.Footnote 78 Whilst the purchaser of a house or a car can resell these items or indeed completely neglect and destroy them if they wish, the same is not true of the intending parents' rights with respect to their child.Footnote 79 Moreover, the intending parents have obligations to care for the child. Thus, it is argued that because the intending parents' rights and obligations differ in the context of a child to other goods, a surrogacy arrangement does not involve a sale.
This argument is problematic for at least three reasons. First, it ignores the reality that the purchase of many goods comes with conditions to regulate their use. For example, a family pet cannot simply be neglected or abused, and ownership of a house may be subject to planning restrictions or heritage overlays. Thus, the existence of a restriction on use does not prohibit a transfer from being characterized as a sale.
Second, the inability to retransfer a child for remuneration does not necessarily preclude a single transfer from being characterized as a sale. The fact that something can only be transferred once does not in itself mean that it cannot be sold. Consider adoptions: the adoption of a child is only intended to involve a single transfer from one person to another person. Commercial adoptions are nevertheless prohibited on the basis that they amount to the sale of a child.Footnote 80 Moreover, if it were accepted that a single transfer of a child precludes characterization as a sale, it would follow that a commercial adoption could not amount to the sale of a child. It is true that some commentators have advocated for an adoption market,Footnote 81 however, they remain a small minority. Moreover, the Hague Convention on Intercountry Adoption prohibits intercountry adoption where money is used to secure a parent's consent to the adoption of his or her child.Footnote 82
Finally, there is nothing in the definition of the sale of a child to suggest that one-off transfers will not amount to a sale. The Optional Protocol simply refers to ‘any act or transaction whereby a child is transferred by any person’ to another person. Nor is there anything in the Optional Protocol to suggest that there must be a transfer in ownership of a child for it to be characterized as a sale. This is because international law precludes the possibility of proprietary rights existing in a person.Footnote 83 For the purposes of international law, the concept of a sale of a child does not require a proprietary transfer, merely a physical one that is facilitated by remuneration or some other form of consideration from one person to another.Footnote 84
H. A Contract for the Sale of a Child or a Mere Service?
The other common justification for commercial surrogacy is that it only involves a contract for gestational services rather than for the sale of a child.Footnote 85 This argument is premised upon the notion that any payment to a surrogate mother, is not for the delivery of the child but for the service of bearing that child. Some commentators even analogize the employer–employee relationship: the surrogate mother is an employee who provides her reproductive system (labour) to transform the genetic material (capital) provided by the intending parents into a child.Footnote 86 Thus, a surrogate mother simply sells her labour rather than the product of her labour. In the words of one commentator, the process is akin to the production of ‘widgets’ in a factory.Footnote 87 This argument is further supported by surrogacy contracts in which the surrogate mother receives payments at various stages of the pregnancy as opposed to a lump sum upon delivery of the child.
This argument is deeply problematic. To equate the role of a gestational mother to that of a factory worker is demeaning both to women and children. It not only objectifies and commodifies women's reproductive capacity, but it also misunderstands the nature and implications of pregnancy. Aside from the serious health risks associated with pregnancy, a surrogate mother's experience is dramatically different to that of a factory worker. She does not enjoy regular hours, weekends, overtime or leave and she is invariably subjected to invasive tests and constraints on her lifestyle. Furthermore, her options are different to a factory worker's if the intending parents decide they no longer want the child. Should she abort the foetus, find an alternative set of intending parents or incur the burden of caring for the child herself?
Moreover, if a commercial surrogacy contract were truly for services and not a sale, what remedy would be available if the surrogate mother decided after giving birth that she would not transfer the child to the intending parents? If the parties had merely entered a contract for services, the intending couple would have no right to demand delivery. However, the intending parents would not want monetary damages. They would want the child and this would only be possible through specific performance of a contract of sale. This reveals the disingenuous nature of the contract for services argument. Under a commercial surrogacy contract, there is not a mere expectation that the child will be transferred—this is the fundamental purpose of the contract.
The counterpoint to this argument is that a surrogate mother never had any entitlement to retain custody of the child. As such, any order to transfer the child would not be akin to specific performance but would simply transfer the child into the care of those legitimately entitled to custody. This presumes, however, that the intending parents have such an entitlement and, as noted above, biological contribution to the creation of a child does not create a proprietary interest in that child.
Moreover, this reasoning depends on a breach of the surrogacy contract to avoid its characterization as a sale. In other words, it requires a surrogate mother to refuse to transfer the child in order for the intending parents to be able to assert a claim to custody rather relying on an order for delivery pursuant to the terms of the contract. It therefore seeks to construct an artificial understanding of a commercial surrogacy to avoid characterization as a sale, even though this understanding bears no resemblance to the actual intentions or actions of the parties to the agreement. In the normal and intended course of events, a surrogate mother will physically transfer the child to the intending parents (or via an intermediary) and will receive payments from the intending parents (or intermediary), whether in instalments or upon transfer of the child, as compensation for her reproductive efforts. This scenario aligns with the definition of the sale of a child under international law where the purpose of the transfer and the identity of the person involved are irrelevant. Thus, a strong case exists that commercial surrogacy is contrary to international law and must be prohibited.
Irrespective of whether this argument is accepted, two further considerations warrant attention. First, is the sale of children necessarily morally reprehensible, such that prohibition is always necessary, and second, what implications follow for a proposed multilateral treaty if the moral status of international commercial surrogacy remains uncertain?
I. Is the Sale of Children Necessarily Morally Reprehensible and Does the Answer to This Question Matter?
These questions are almost counter-intuitive. For the overwhelming majority of people, to sell a child is to reduce him or her to a mere object, a chattel commodified for the benefit of another.Footnote 88 It is to treat the child as a means to an end and in doing so strip him or her of dignity and deny him or her the enjoyment of his or her inalienable rights. But is this what actually happens when a child is transferred under a surrogacy agreement? The intending parents, who will have usually spent considerable financial and emotional resources in securing the child, will certainly value the child. Indeed they are likely to regard the child as priceless. Moreover, they will intend to love and care for the child, and to safeguard his or her development. Thus, while the sale of a child for exploitative purposes is clearly reprehensible, the experience of a surrogate child will be substantially different and is arguably defensible from a moral standpoint. Might it be the case, then, that international law has adopted an overly protectionist stance? This accusation has certainly been made with respect to issues such as child labour and children's participation in armed conflict.Footnote 89 This in turn raises the question of whether an absolute prohibition on the sale of children under international law is morally justified?
This question gives rise to complex issues concerning market inalienability; that is, the circumstances in which an entity/thing ought not to be subject to transfer under a market mechanism. A detailed consideration of this issue is not required here and it is sufficient to offer three observations.Footnote 90 First, unsurprisingly there is no consensus among commentators regarding the morality of commercial surrogacy. Second, the argument that this practice is morally reprehensible usually consists of the following elements—irrespective of the parties' intentions, commercial surrogacy still treats the child as a means to an end and in doing so undermines the Kantian notion of dignity which provides that all persons have inherent value.Footnote 91 A market for the creation of children also creates the risk that certain attributes, such as gender, race, complexion, intellectual and athletic ability, will be preferred.Footnote 92 This presents a risk to unborn children, whose self-worth might be influenced by the presence or absence of these attributes. It also presents a risk to public morality more generally in that a society which tolerates individuals' entitlement to choose the skin colour, gender, ability and complexion of their children might be considered to commodify children in a way which leaves us all as inferior human beings.Footnote 93 In short, the principles of dignity and equality are arguably threatened when the market places a financial value on human life and physical or intellectual characteristics.
In response, proponents of commercial surrogacy would respond as follows. First, the idea that commercial surrogacy arrangements threaten children's dignity is an abstract argument which should be displaced by the actual intentions of the parties and a child's actual treatment by his or her intending parents;Footnote 94 second, that concerns about commodification and the preferencing of certain attributes already occur when people choose their partners and reproduce coitally rather than technologically;Footnote 95 third, that such concerns might be overcome by regulation and that, in any event, the numbers of surrogacy arrangements are so small that no real threat is posed to dignity and equality. Finally, where there is a biological connection between the child and intending parent(s), any commodification is at best incompleteFootnote 96 but potentially non-existent where the biological connection provides intending parent(s) with a right to custody.Footnote 97
Space precludes a careful analysis of these claims; however, the reality is that scholars and advocates will continue to take different positions with respect to the morality of commercial surrogacy. From the perspective of this analysis, whose focus is international human rights law, the resolution of this issue is not critical for two reasons. First, as argued above, international human rights law appears to deem any sale of a child as morally reprehensible. Second, even if a contrary view were taken and the sale of children was deemed morally defensible, the reality is that prohibitionist States would be within their margin of appreciation to prohibit the practice.
This is because States have broad discretion to limit rights on the basis of public morality. As the Siracusa Principles explain, although ‘public morality varies over time and from one culture to another’, States enjoy a ‘certain margin of discretion’ when invoking ‘public morality as a ground for restricting human rights’.Footnote 98 A concern regarding the impact of commercial surrogacy on public morality would almost certainly fall within the scope of this discretion. Indeed, the European Court of Human Rights has held that restrictions on the less contentious practice of assisted reproductive technology were within the State's margin of appreciation, despite the interference with the applicants' right to respect for private life.Footnote 99
The discretion accorded to States has significant consequences for any multilateral treaty that would address the parentage and nationality issues associated with international commercial surrogacy. It effectively means that prohibitionist States could justify their stance on at least two grounds: the prohibition on the sale of children under the CRC and Optional Protocol, or their own margin of appreciation to prohibit this practice on the grounds of public morality. It also means that it would be incongruous for these States to become party to a treaty that tolerated and recognized a practice which is illegal in their own jurisdiction. This would leave the handful of States that permit commercial surrogacy arrangements as potential parties to a multilateral treaty, but such a treaty would be of limited use because the issues that arise with respect to children's parentage and nationality overwhelmingly occur where intending parents from prohibitionist States enter surrogacy agreements in permissive States.
The focus of the discussion to this point has been the implications of international commercial arrangements on the rights of the child. But what about the rights of the surrogate mother? What role do they play in determining whether to prohibit or permit these arrangements? It is now to these issues that we now turn.
J. The Rights of the Surrogate Mother
In the discussion about the rights of the intending parents, it was explained that the right to privacy entitles individuals to enter into personal relationships for the purpose of reproduction. As such, a woman's decision to enter into a commercial surrogacy agreement would be protected prima facie by her right to privacy. International human rights law provides women with reproductive autonomy and any attempt to limit this must be justified as being reasonable in all the circumstances.
The two arguments commonly raised to justify a ban on commercial surrogacy are (a) that such arrangements are exploitative and a surrogate's consent cannot be considered free and fully informed; and (b) that even if there is no exploitation, they still commodify women's reproductive systems and thereby maintain gender inequality. Do either of these arguments withstand scrutiny?
K. Are International Commercial Surrogacy Arrangements Necessarily Exploitative?
The Convention on the Elimination of All Forms of Discrimination against WomenFootnote 100 does not specifically prohibit the exploitation of women.Footnote 101 Thus, where a State prohibited surrogacy arrangements on the basis that these arrangements are (or might be) exploitative of women, the consequent interference with the rights of the intending parents would need to be justified on the ground that it was necessary to protect public morality.Footnote 102 But are such arrangements necessarily exploitative?
Recent years have witnessed a marked increase in the number of international commercial surrogacy arrangements, especially in India.Footnote 103 The surrogates who enter these are invariably from lower socio-economic backgroundsFootnote 104 and are paid substantially less for their services than, for example, women in the USA.Footnote 105 Is this payment differential exploitative? Moral outrage may fuel the argument that Indian women should not be paid less for providing the same ‘service’ and delivering the same ‘product’. The logic of this argument, however, would render exploitative every practice in a developing country for which less remuneration is received than in a developed country and require prohibition. This is neither practical nor accurate. Many women in developing countries receive payments under international surrogacy arrangements which vastly exceed local rates of pay and provide these women and their families with significant financial support. Such arrangements cannot be considered exploitative if the consent of the woman is free and fully informed.
However, the evidence points to serious deficiencies in the process leading to a surrogacy arrangement, and suggests that surrogate mothers may not be fully informed of their rights or obligations under these contracts. For example, reports of a lack of independent advice or interpreters for surrogate mothers in developing countries, who are often illiterate, are common.Footnote 106 In these circumstances, a woman's consent is sometimes secured with nothing more than a thumbprint on a contract written in a language she cannot understand.Footnote 107 It is difficult to see how consent in these circumstances would ever be free and fully informed.Footnote 108 But will an international surrogacy arrangement with a woman from a lower socio-economic background in a developing country always be exploitative?
Proponents of the practice argue that the risk of exploitation can be mitigated through regulation. Indeed one commentator advocates an approach based on an application of the fair trade principles, as applied in the international coffee market.Footnote 109 In theory, regulation might address the risk of exploitation. In practice, however, it would be reasonable to question the capacity of developing States to both establish and effectively enforce the necessary regulatory framework. Experiences in the area of intercountry adoption, where many developing States are unable to regulate this practice effectively, support this view. The reality is that the measures required to ensure that a woman provides her fully-informed and free consent are substantial.Footnote 110 Significant resources must be allocated to ensure these measures are effective. States may not possess these resources and/or there may be a disincentive to adopt them because they would increase the cost of a commercial surrogacy and thereby reduce the comparative price advantage currently enjoyed in developing States. The reality is that the incentives for corruption, or at least something less than best practice, are significant. Thus, while international commercial surrogacy may not be exploitative per se, a State would have reasonable grounds for refusing to recognize these arrangements in the absence of evidence of effective mechanisms to ensure that the consent of surrogate mothers is free and informed. This proposition does not, however, demand the prohibition of international commercial surrogacy, only a commitment to effective regulation, with individual States reserving their right to refuse to recognize surrogacy arrangements in States where there are reasonable grounds to suggest that the surrogate mothers' consent might not be free and fully informed.
L. Do Commercial Surrogacy Arrangements Maintain Gender Inequality?
For feminist commentators such as Debra Satz, commercial surrogacy (or ‘contract pregnancy’, as she prefers) is morally objectionable because it maintains gender inequality.Footnote 111 This argument is based upon three elements. First, commercial surrogacy arrangements facilitate ‘increased access to and control over women's bodies’.Footnote 112 These arrangements usually impose significant control over women's lifestyle during pregnancy; require submission to various tests and provide for abortion of the pregnancy where, for example, the surrogate mother has a negative amniocentesis result, or is carrying multiple foetuses. For Satz, the concern is not that the contract ‘gives control over someone else's body’ but that the body being ‘controlled belongs to a woman in a society that historically has subordinated women's interests to those of men, primarily through its control over women's sexuality and reproduction’.Footnote 113 Second, commercial surrogacy arrangements reinforce ‘negative stereotypes about women as “baby machines”’.Footnote 114 Third, these arrangements create the risk that ‘motherhood will be defined in terms of genetic material’.Footnote 115 This concern, often manifest in court rulings and commentary on parentage, fails to take into account women's unique gestational contribution to a child's creation and thereby reinforces the ‘stereotype of women as merely the incubators of men's seeds’.Footnote 116 For someone like Satz, in a world characterized by gender inequality, commercial surrogacy is morally objectionable because it maintains this inequality.Footnote 117
Unsurprisingly, other commentators take issue and argue that commercial surrogacy can actually empower women,Footnote 118 that women who act as surrogates do not regret their involvement in this practiceFootnote 119 and that a regulatory approach can address concerns over exploitation. As to which position is more persuasive need not be resolved here because the reality is that, as with children's rights, the moral objections to this practice are sufficiently defensible to fall within a State's margin of appreciation to prohibit commercial surrogacy on the basis of public morality. Thus, whether this issue is examined from a child's perspective or that of the surrogate mother, a multilateral treaty faces significant obstacles. Even if such a treaty were negotiated, whether it were prohibitionist or permissive, it would take significant time to negotiate and draft. Thus, States must develop an interim response, which is consistent with their international human rights obligations. What then might this response look like?
III. THE INTERIM SOLUTION: WHAT IS THE RIGHTS RESPONSE FOR PROHIBITIONIST STATES?
A. The Border Dilemma: The Need for Prevention and Deterrence
If a State prohibits commercial surrogacy within its own jurisdiction, this must be accompanied by effective measures to discourage the practice outside its borders. In some jurisdictions, children born under such arrangements are denied entry into the prohibitionist State. This approach potentially renders the child stateless and raises complex questions regarding care for the child and what is in his or her best interests. Once an international surrogacy has proceeded this far it will invariably be in the child's best interests to remain with their intending parents (unless the gestational mother is willing to care for the child) as the only other options would be foster care or adoption. It is within this context that immigration officials, courts or diplomatic negotiations have tended to grant the child entry into the prohibitionist State.Footnote 120
While this outcome may be defensible from the perspective of the individual child's rights, it effectively facilitates and tolerates a practice that is not only unlawful under domestic law (and arguably international law) but potentially involves the exploitation of the surrogate mother. Such ‘signal failure’ is clearly problematic and also potentially inconsistent with any obligation to protect women from exploitation and prohibit the sale of children.
As a result, the current approach is unsustainable (at least if coherence and consistency are considered fundamental features of the law) and prohibitionist States must adopt more effective measures to deter and reduce people's capacity to enter into international commercial surrogacy arrangements in the first instance. This might involve several initiatives, of which education and awareness-raising are arguably the most important and currently the least developed.Footnote 121 Couples (or individuals) seeking children via non-traditional means are understandably drawn to the potential realization of their dreams via international commercial surrogacy. But in prohibitionist States there is very little publicly available information regarding the status or problematic nature of these arrangements. Even simple measures such as coordinated education campaigns, combined with warnings at airports, would ensure that prospective intending parents are aware of the relevant law.
Second, there is very limited regulation of the agencies that facilitate international surrogacy arrangements. At present there are strong financial incentives to assist couples (and individuals) to enter international surrogacy arrangements. These incentives might be limited, however, if such agencies faced the prospect of financial penalties for their involvement in these arrangements.
Prohibitionist States must also take measures to reduce the incentive for intending parents to enter international commercial surrogacy arrangements. These might include amendments to the regulation of domestic altruistic surrogacy arrangements, and adoption and foster care, which are often unjustifiably burdensome and create unreasonable conditions for intending parents to assume care of a child domestically.Footnote 122 States might, and arguably must, also permit gay and lesbian persons to adopt or foster children. This is because such a prohibition is not only incompatible with the international human rights law,Footnote 123 it also incentivizes these couples' (or individuals') entry into international commercial surrogacy arrangements to fulfil their desire to have children.
Importantly, awareness-raising measures and a reduction of the incentives for entry into such arrangements will take time to be fully implemented. In the interim, a moratorium on commercial surrogacy might be extended to those who have already entered such arrangements and are waiting to return, or have recently returned, to their home country with the child. Here, there remains a need to determine children's nationality and parentage in accordance with international human rights law and it is to these issues that I now turn.
B. Within the Borders: The Resolution of Parentage and Nationality
The CRC provides that a child is entitled to preserve his or her nationality.Footnote 124 Unfortunately, it provides no guidance as to how the nationality of a child is to be determined. Nor has the Committee on the Rights of the Child considered the issue. A detailed discussion of this issue is beyond the scope of this paper. However, it is sufficient to note that any assessment of a child's nationality will be informed by the nationality laws of both the permissive and prohibitionist States.Footnote 125 Public international law provides no resolution to this issue, other than requiring that a child not be left stateless (to do so would be inconsistent with the obligation to preserve the child's nationality).
As to the issue of the child's parentage, there are a number of potential scenarios. As noted above, a child might be recognized as having up to five parents and a minimum of three. However, when the intending parents arrive in a prohibitionist State, the reality is that a maximum of two persons are seeking to establish themselves as parents. This creates a dilemma for prohibitionist States because recognition of such persons as parents would effectively endorse and sanction actions that are unlawful under domestic law (and arguably inconsistent with international law).
Against this dilemma, however, must be posited the reality that whichever approach is adopted with respect to parentage by the prohibitionist State (and/or its courts), Article 3 of the CRC requires the best interests of the child to be a primary consideration. The differing approaches to this dilemma are illustrated by some recent decisions of the Family Court of Australia.Footnote 126 In one series of cases, the judge was prepared to grant the intending parents a parenting order but not a declaration to recognize their parentage.Footnote 127 The parenting order was justified as being in the best interests of the child, since it ensured that someone was legally responsible for the child in Australia (in circumstances where the gestational mother was not making any attempt to have the child returned to her care). The judge was not prepared to recognize, however, the parentage of the intending father (on the facts of the case) because this would have legitimized actions which were prohibited under domestic law and was therefore contrary to public policy.Footnote 128
In another case, the presiding judge took a different view and recognized parentage on the basis that this was necessary to minimize the harm to the children (who were twins).Footnote 129 To hold otherwise would have imposed a double burden on the children who would have been both subjected to an unlawful practice and denied the benefits of having certain persons recognized as their parents (on the facts of the case only the intending father was recognized as the legal father). This position is more consistent with international human rights law—a child created as a result of an unlawful practice should not, where reasonably possible, bear any burden as a result of its illegality. But this approach still facilitates and legitimizes a practice which is unlawful under domestic and, arguably, international law. Thus, while it may be defensible as a necessary interim measure to secure a child's best interests, it is an unsustainable and indefensible approach if the law of a prohibitionist State is to be internally coherent and consistent with international law (to the extent that it is accepted that commercial surrogacy involves the sale of a child, exploits surrogate mothers or maintains gender inequality).
IV. CONCLUSION: REVISITING THE ‘MENU OF CHOICES’Footnote 130
The expanding commentary on international commercial surrogacy tends to perceive such arrangements as inevitable. In turn, this inevitability is viewed as a bar to prohibition, and regulation is the preferred, pragmatic response. This approach is, however, problematic for three reasons. First, as a general principle, the inevitability of a practice must not preclude efforts to achieve its prohibition. To hold otherwise would be to tolerate a vast range of practices and behaviours that are inevitable but deemed morally reprehensible and therefore in need of prohibition. Thus, when assessing the appropriate response to international commercial surrogacy, it is not the inevitability of the practice but its morality that will determine whether it ought to be tolerated or prohibited.
Second, from the perspective of international human rights law (which also reflects a particular moral framework), it is arguable that international commercial surrogacy must be prohibited on one of three potential grounds: it amounts to the sale of a child; risks the exploitation of women, especially in developing countries; and/or maintains gender inequality. Although each of these propositions remains contentious, a prohibitionist State or one contemplating prohibition would be well within its margin of appreciation to prohibit such arrangements.
Third, the idea that the mere regulation of international commercial surrogacy is a pragmatic and functional response to the dilemmas associated with this practice is misplaced. On the contrary, in a global environment where prohibition of this practice remains the norm rather than the exception, it could be incongruous for prohibitionist States to ratify a multilateral treaty, which obliges them to recognize commercial surrogacy arrangements entered into in permissive jurisdictions. Thus, far from being a pragmatic and functional response, multilateral regulation is unlikely to be a realistic option in the current global environment.Footnote 131 Indeed, if anything, a prohibitionist treaty is a far more realistic option and would be consistent with international human rights law, if it accepted that commercial surrogacy arrangements amount to the sale of a child. This conclusion may not provide comfort to those who have a legitimate and understandable desire to have children. Their desire, however, does not demand tolerance of a practice that arguably maintains gender inequality and potentially violates the rights of surrogate mothers and the children to whom they give birth.
