By: Daniel Maher
Reproductive tourism is estimated to be a $6 Billion a year industry,[i] and its use by intended parents is growing, particularly through reproduction clinics and surrogates in countries with rising levels of poor women who need the extra income.[ii] At the 2017 North Carolina Journal of International Law Symposium, Professor Kathryn Bradley gave a presentation on a forthcoming paper titled Surrogacy and Sovereignty: Safeguarding the Interests of Both the Child and the State.[iii] Professor Bradley highlighted the current patchwork of domestic and international laws that are responsible for ensuring that surrogacies are performed legally, and the potential consequences when gaps in those laws, or ignorance on the part of the hopeful parents, fails to properly establish the rights of the child. These lapses have led to issues with stateless children, often due to citizenship requirements in the country of the intended parents that do not contemplate the unique circumstances of a surrogacy.[iv] This has occasionally led to children being taken away from parents because laws in the parents’ home country do not recognize the relationships which produced the child.[v] The United States has a broader citizenship approach with a combination of jus sanguinis and jus soli principles of citizenship, which, along with statutes,[vi] help ensure a child’s legal status.
Professor Bradley feels strongly that the state has a right and an obligation to regulate surrogacy and to punish those who violate national laws. She makes a salient point that no intended parent ends up in a surrogacy situation by accident. There is often extensive planning, which she argues should include a thorough review of the relevant laws of each country. Ignorance cannot be an excuse. Parents must understand that until the state has conferred them rights in a child born through surrogacy, they are not entitled to any parental rights in the child they contract to produce, even if they contain some of the intended parents’ genetic material. Professor Bradley used North Carolina law as an example, where state law requires a father seeking to assert rights in a child being put up for adoption to show that he supported the mother in some fashion during pregnancy.[vii] The relationship between intended parents and surrogate must be supportive from conception through birth.
In international law, the child has the right to be protected, has the right to know who their family members are, and has the right to have someone step in when the parents cannot or will not act in the child’s best interest.[viii] They also have the right to citizenship, most likely turning on their parentage.[ix] Recent cases, such as the Baby Gammy[x], Baby M[xi], and Paradiso[xii] cases show that bad actors and unforeseen consequences of surrogacy have the potential to completely throw into question a child’s citizenship and parentage. It is these kinds of cases which call strongly for a UN convention on adoption and surrogacy, something that so far has not gained much traction internationally.
Professor Bradley believes that there are three categories of actions that the state can take in order to protect children of surrogacies more fully. First and foremost, states need to be more proactive, stating clearly whether or not surrogacy is allowed under the state’s laws, and passing statutes and building regulations that clearly mark the requirements for surrogacy if allowed.[xiii] Second, governments have an obligation to act expeditiously.[xiv] Professor Bradley cites the United Kingdom as an example. Intended parents in the UK must apply for parental rights between 6 weeks and 6 months after the child is born.[xv] After that period, the possibility of parental rights is terminated. The more expeditiously states act to cement the parentage of a child, the less damage is done to relationships between the child and caregivers. Finally, states have an obligation to act justly.[xvi] This means establishing clear judicial procedures which seek to balance the interests of the parents, child, and state, and recognizing the judicial decisions of courts in other states with respect to the child.
The rapid pace of medical technological advancement and increasing globalization is likely to make international surrogacy more popular in the coming decades. The international community has an opportunity to act now to protect the futures of children who have yet to be conceived. Prof. Bradley laid out important guide posts in her recent address, and hopefully new international regulation will address many of her concerns. The safety of the vulnerable child continues to be a critical focus in international law, as they undoubtedly are our future.
[i] Raywat Deonandan, Recent Trends in Reproductive Tourism and International Surrogacy: Ethical Considerations and Challenges for Policy, 8 Risk Management and Healthcare Policy 111–19 (2015).
[iii] Kathryn Bradley (Professor of Law, Duke University School of Law), Address at the University of North Carolina Journal of International Law Symposium: Surrogacy and Sovereignty: Safeguarding the Interests of Both the Child and the State (Oct. 27, 2017).
[iv] See Yasmine Ergas, Babies Without Borders: Human Rights, Human Dignity, and the Regulation of International Commercial Surrogacy, 27 Emory Int’l L. Rev. 117, 133-36 (2013).
[vi] 8 U.S.C § 1401 (2017).
[vii] See N.C. Gen. Stat. § 48-3-601 (2017).
[viii] See Universal Declaration of Human Rights, Dec. 10, 1948, UNGA Res 217 A(III), art. 25, cl. 2.
[x] Farnell & Anor and Chanbua  FCWA 17 (Austl.)
[xi] In re Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 1988).
[xii] Paradiso and Campanelli v. Italy, ¶ 132, Eur. Ct. H.R. 25358/12 (2015).
[xiii] Bradley, supra note iii.
[xiv] Bradley, supra note iii.
[xv] See Human Fertilisation and Embryology Act 2008, c. 22 (Eng.)
[xvi] Bradley, supra note iii.