Adopting an International Convention on Surrogacy -- A Lesson from Inter-Country Adoption

Loyola University Chicago International Law Review, Forthcoming

Symposium: Cross-Border Health Care: The Movement of Patients, Providers, and Diseases, Loyola University School of Law-Chicago, 2015

40 Pages Posted: 13 Jun 2015 Last revised: 9 Feb 2016

See all articles by Seema Mohapatra

Seema Mohapatra

Indiana University Robert H. McKinney School of Law

Date Written: February 7, 2016

Abstract

Surrogacy advocates have often tried to distance cross border surrogacy from inter-country adoption. There has been a resistance to likening surrogacy to adoption in part because the restrictions on intercountry adoption often resulted in discrimination against LGBT parents, single parents, and parents that did not otherwise fit the mold of the ideal adoptive parents. Advocates have theorized gestational surrogacy as a private issue between the intended parents and the surrogates, without the state being involved in determining the fitness of the intended parents. The assisted reproductive technology (“ART”) community has advocated an open approach to access to ART and surrogacy. The theory is based on the belief that just as those who conceive “naturally” do not have a parental fitness test, neither should those who need ART assistance.

Although it is never a good idea to overreact with a legal solution or restriction to every sensational news story about ART, two recent cases involving surrogacy show the need to focus on how to ensure the best interests of children borne of surrogacy. In one of the cases that drew international attention, an Australian couple was accused of abandoning their baby son, who has Down syndrome, with his Thai surrogate mother and returning home with his twin sister. Then, it was revealed that the husband had been convicted of numerous child sex offenses against girls as young as five years old. In another incident, a young Japanese businessman fathered 16 children since June 2013 with Thai surrogate mothers, claiming that he wanted a large family. In both cases, there is a real concern about the health and safety of the children borne of these surrogacy arrangements.

In this Article, I highlight how surrogacy and adoption are similar, and how they differ, in order to make a case that an international convention on surrogacy is needed. This Article builds upon two previous articles on international surrogacy and two chapters about regulation international surrogacy. What makes the feasibility of such a convention a question is that, unlike inter-country adoption, where most countries are open to some form of it, many countries outright ban commercial surrogacy and would not want to be involved in theorizing how to make it “right”. However, the convention does not have to deem surrogacy a right or even make any moral judgments for or against surrogacy. The reality is that many citizens of countries that ban surrogacy are seeking surrogacy arrangements elsewhere, and thus even those countries banning the practice, should be party to a convention which attempts to address this issue. The convention should address how to deter the breaking of the law, without harming the children borne of such illegal arrangements.

In 2012, the Hague Conference published “A Preliminary Report On The Issues Arising From International Surrogacy Arrangements”, where it considered some of the issues related to surrogacy such as the citizenship of the child borne of surrogacy and parentage issues. However, there are numerous other issues that any international convention must address. Many commentators have suggested that any surrogacy convention must deal with the issue of whether anonymous gamete donations are allowable. In adoption, there is a movement towards open adoption, and in many parts of the world, a trend towards “open ART” is also emerging. In this article, I take the position that although open ART may be a laudable goal, it will hinder the availability of donor gametes for infertile families and other intended parents that need to seek donor gametes. Thus, I suggest that the convention be silent on whether donors need to be known.

Additionally, I propose how an international convention should address the health of surrogates. Surrogates are often more vulnerable than birth mothers in inter-country adoption, as they are being paid to carry a child for another and are separated from their support system while pregnant in some countries like India.

Also, just as there were issues with untrustworthy adoption agencies, reports of deceitful of surrogacy agencies are emerging. I propose restrictions similar to the Convention on Inter-country Adoption on this issue.

The Hague Conference has indicated its desire and willingness to propose an international convention about cross border surrogacy. I highlight ways that this could be done without impinging on the morals of those countries that are staunchly anti-surrogacy.

Keywords: surrogacy, adoption, cross border tourism, reproductive tourism

Suggested Citation

Mohapatra, Seema, Adopting an International Convention on Surrogacy -- A Lesson from Inter-Country Adoption (February 7, 2016). Loyola University Chicago International Law Review, Forthcoming, Symposium: Cross-Border Health Care: The Movement of Patients, Providers, and Diseases, Loyola University School of Law-Chicago, 2015, Available at SSRN: https://ssrn.com/abstract=2617896

Seema Mohapatra (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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