Babies without Borders: Human Rights, Human Dignity and the Regulation of International Commercial Surrogacy

69 Pages Posted: 18 Nov 2012

See all articles by Yasmine Ergas

Yasmine Ergas

Institute for the Study of Human Rights, Columbia University

Date Written: 2012

Abstract

In recent decades, a robust international market in commercial reproductive surrogacy has emerged. But, as German citizens Jan Balaz and Susan Lohle discovered when they struggled to engineer the last-minute diplomatic compromise that saved their commissioned twins from becoming wards of the Indian state, conflicts among legal frameworks have placed the children born at risk of being “marooned, stateless and parentless.” States have tried to address the individual dramas through ad hoc solutions – issuing emergency entry documents for children caught at borders or compelling administrative authorities to recognize birth certificates related to surrogacy arrangements that run counter to domestic public policies. The inadequacy of such approaches has become increasingly evident. As a result, states have developed national legislation and, together with international institutions and civil society networks, begun to seek international agreements. Indeed, international coordination represents the only viable solution to the individual dramas and diplomatic crises that have characterized the market in international commercial surrogacy. But will that be possible? This article explores whether and to what extent, a coordinated approach is likely to be found, and the role and limits of international law.

After a brief introduction (Part I), the article examines the vicissitudes of the Balaz twins as emblematic of the filiation and citizenship issues that the international market in commercial surrogacy raises (Part II). It then explores possible approaches to the conflicts among legal systems that underlie the Balaz case whether through individual contracts (Part III) or treaties (Part IV). The article predicts that, at least in the short term, an effective legalizing regime based on a unifying set of rules and norms is unlikely to emerge. Ultimately, a new regime will require a long-term renegotiation of the meanings of filiation, its significance for citizenship and the re-interpretation of fundamental norms relating to human rights.

Keywords: surrogacy, human rights, human dignity, women's rights, international law, international regulation

Suggested Citation

ergas, yasmine, Babies without Borders: Human Rights, Human Dignity and the Regulation of International Commercial Surrogacy (2012). Emory International Law Review (2013). Forthcoming, Available at SSRN: https://ssrn.com/abstract=2177314

Yasmine Ergas (Contact Author)

Institute for the Study of Human Rights, Columbia University ( email )

91 Claremont Avenue
Floor 7T, Mail Code 3365
New York, NY 10027
United States

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