Transnational Commercial Surrogacy: Contracts, Conflicts, and the Prospects of International Legal Regulation
Oxford Handbook Online in Law, 2016
29 Pages Posted: 25 Mar 2016 Last revised: 18 Nov 2017
Date Written: August 1, 2016
This Article explores the current legal regulation of transnational commercial surrogacy. It analyzes some of the key cases that have arisen in transnational surrogacy arguing that an absence of legal rules promulgated by surrogacy providers and an over reliance on private contract gives rise to conflicts between parties particularly when rights and laws that cannot be contracted out of are at the heart of the case. For instance, contract law is unable to deal with problems arising from citizenship and parentage status which are decided by the state and cannot be derogated from. When two states disagree about the parentage or citizenship of a child born from surrogacy, in the absence of an international agreement, each case has to be resolved instantially through diplomatic channels often creating the problem of limping status. The article explores the most recent developments at the transnational and international level, particularly by the Hague Conference on Private International Law's Experts' Group dealing with parentage, citizenship and international surrogacy agreements.
Keywords: international family law, surrogacy, transnational surrogacy, Hague Conference
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