Cross-Border Recognition in Surrogacy Cases: International Law Between Competition and Harmonization

MEFamily law translates the cultural values of a society into rules for living together. Whereas the growing diversification of family models calls for an adaptation of the provided legal structures, new technologies in the field of reproductive technologies necessitate an adaptation of parentage laws all over the world. The course of legal modernization involves the challenge between regulating the technically possible and maintaining valued cultural traditions. The legal definition of parent-child relationships in particular turns out to be highly controversial as the desire to have a child partially rivals the best interests of the child.

One of the latest points of culmination in this legal policy discussion is regulation on cross-border surrogacies. Surrogacies enable intended parents who cannot have a baby for whatever reason to commission a woman to carry the baby for them and handing the baby over to them right after birth. Often, the intended father chips in his sperm whereas the egg may stem from the intended mother, the surrogate, or an egg donor.

Sure enough, few women are willing to take the burden of a pregnancy for solely altruistic reasons. They ask for compensation and sometimes even for a little profit. Together with the expenses for medical treatment and administration, intended parents pay a five-digit Euro amount for the whole surrogacy process. The exact figure depends on the market: Whereas in the United States, the total price can even reach US$ 100,000, Indian suppliers may do it for one fifth of that amount. Cross-border markets have evolved, competing for the best service at the lowest price.

The price for a child born through surrogacy, however, entails a non-monetary dimension as well: Intended parents also care about the legal price they have to pay in order to make the newborn baby their child. Legal diversity as to the laws of parentage is high – and so are the legal costs which intended parents have to pay for the whole process. In many countries, surrogacy is prohibited; thus, for intended parents from these jurisdictions, the costs of commissioning a surrogate at home – i.e., facing criminal sanctions etc. – are prohibitively high. So people from these countries go traveling in order to mandate a surrogate mother abroad and import the baby once she is born.

The so-called “procreative tourism”, however, does not put an end to the problem of legal costs. Many of the strict regulators who have banned surrogacy on their territories use their family laws to discourage their citizens to commission surrogates abroad by complicating the recognition of the baby’s descent from the intended parents. Their family laws irreversibly identify the birth mother as the legal mother and mostly do not allow the contestation of motherhood. Furthermore, if the surrogate is married, her husband is presumed to be the father of the baby so that the intended father can only establish the descent by acknowledging paternity. If the intended parents try to circumvent these laws by introducing parentage certificates from the child’s country of birth, their home jurisdictions refer to public order and refuse to grant them recognition.

Against the background of the problems intended parents face, several voices in academia and practice have argued for an international convention in order to ease cross-border recognition of parentage in surrogacy cases. Others propose to redefine motherhood on the national level or limit the use of the public order restriction so that intended parents have maximum legal certainty as to the legal effects of cross-border surrogacies. These attempts to refine and modernize family laws are crucial from the view of the intended parents; however, considerate legislation might rather put the baby first and gear the law to the interests of the child.

Here, it is important to notice that the goals of the intended parents and the best interests of the child do not necessarily match. For example, it is well conceivable that children have an interest in maintaining a mother-child relationship with their birth mothers instead of being transferred to the intended parents without further assessment. So far, psychosocial research has provided little insights into the extent to which a separation from the birth mother may harm the child. If, however, for this reason a legislator decides to be cautious as to a liberalization of family law, this position seems perfectly legitimate, if not the best from the perspective of the child. The discussion on new reproductive health laws would be well advised to thoroughly examine potential disadvantages for the involved children instead of hastily reacting on the latest procreational trends.

For further details on the matter see http://ssrn.com/id=2348270

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