International Law Concerning ART
| Published date | 01 January 2021 |
| Date | 01 January 2021 |
| Author | Stephen Page |
| DOI | http://doi.org/10.1111/fcre.12551 |
INTERNATIONAL LAW CONCERNING ART
Stephen Page
The article seeks to set out the current international legal landscape concerning international surrogacy arrangements and
how domestic law and conventions might impact on international sur rogacy arrangements.
Practitioner’sKey Points:
How to navigate international legal issues when considering international surrogacy arrangements.
What may be legal and good practice in one place may be illegal somewhere else.
Never assume that how you practice ART and your ART laws are the lawsanywhere else.
Keywords: Extra-Territorial Surrogacy Criminality; Hague Convention; International Surrogacy Arrangements; United
Practicing ART law is an immensely complex task. The task is difficult enough when dealing with
international egg, sperm, or embryo donation, but more so with international surrogacy arrangements.
The COVID-19 pandemic has emphasized issues with international law concerning ART, as intended
parents, surrogates and children have lived through the first truly global surrogacy crisis.
Different countries have taken different approaches to the regulation of surrogacy in particular,
ranging from prohibition,
1
to a more permissive but still regulated approach,
2
to allowing non-com-
mercial, or as it is termed altruistic surrogacy, but banning commercial surrogacy,
3
to a liberal
regime in which surrogates are paid compensation for their efforts.
4
There are three forms of current international regulation which might impact international surro-
gacy. They are:
1. Attempts by countries to ban overseas surrogacy.
2. The 1993 Hague Intercountry Adoption Convention.
3. The 1996 Hague Child Protection Convention.
As seen below, the first has been ineffective, and the second and third are unlikely to apply,
resulting in no international regime for the regulation of surrogacy.
Since 2010, the Hague Conference on Private International Law (HCCH) has moved towards
having two international conventions in place: one on private international law concerning children,
and another on international surrogacy ar rangements. Such conventions would complement existing
Hague Conventions: the 1980 Hague Convention on Civil Aspects of International Child Abduction,
1993 Intercountry Adoption Convention, and the 1996 Hague Child Protection Convention.
Two organizations have been given observer status to this process at HCCH –the International
Academy of Family Lawyers
5
and the International Social Service. The latter posited in 2013, with-
out citation, that there are approximately 20,000 international sur rogacy arrangements happening
per year in the world.
6
The source of that figure is not known.
Corresponding: stephen@pageprovan.com.au
Stephen Page is a principal of Page Provan, Solicitors, Brisbane, Australia and lectures in Ethics and the Law in Reproduc-
tive Medicine at the University of New South Wales.
FAMILY COURT REVIEW, Vol. 59 No. 1, January 2021 46–66, doi: 10.1111/fcre.12551
© 2021 Association of Family and Conciliation Courts
In 2018 and 2019, the then United Nations Special Rapporteur on the Sale and Sexual Abuse of
Children and the Exploitation of Children in Child Pornography raised concerns about the possible
exploitation of surrogates and children born through surrogacy, which she argued may be a breach
of the optional Protocol to the United Nations Convention on the Rights of the Child.
7
Why there should be such conventions has been set out by HCCH
8
:
“Historically, the issue of whom the law should identify as a child’s legal parent(s) was, in most States,
relatively settled. However, uncertainty has arisen in recent decades in some States as a result of a com-
bination of changing family patterns and advances in medical science. This has given rise to a number
of legal developments across States, including the law on parentage. Difficulties have sometimes arisen,
however, because these developments have not been globally uniform. States’approaches to issues such
as paternity disestablishment (in light of DNA testing), assisted reproductive technologies and surrogacy
arrangements have varied greatly, depending on the State’s cultural, political and social environment.
As a result, there is, as yet, no international consensus on how to establish and contest legal parentage
in these circumstances.
In an era of globalisation, when families cross borders with increasing frequency, these differences in
States’domestic laws can give rise to complex questions of private international law concerning the
establishment, contestation and recognition of children’s legal parentage. These questions implicate
children’s fundamental human rights (see, e.g., the UN Convention on the Rights of the Child, Arts 7
and 8).
In addition, a particularly "burning issue" has come to light in recent years: it is now well-known that
surrogacy is a global business. This has created a number of challenges, especially when surrogacy
arrangements involve parties in different countries. In particular, international surrogacy arrange-
ments (ISAs) can often result in the difficulties described above concerning the establishment or recog-
nition of the legal parentage of the child(ren) born as a result of the arrangement, sometimes
rendering the child parentless. This can have far-reaching legal consequences for all involved: for
example, it may affect the child’s nationality, immigration status, the attribution of parental responsi-
bility regarding the child or the identity of the individual(s) under a duty to financially maintain the
child, etc. Difficulties may also arise because the parties involved in such an arrangement are vulner-
able and at risk.”
I. ATTEMPTS BY COUNTRIES TO BAN OVERSEAS SURROGACY
Some jurisdictions, by banning surrogacy altogether, have taken the view that surrogacy that has
occurred overseas, when the citizens bring the children back to their home country, must in and of
itself be morally wrong and therefore ought to be banned. Other countries have not banned their cit-
izens from undertaking surrogacy overseas but have not recognized the parentage of the children
who have been born through that process. One country banned all IVF, with the result that intended
parents went elsewhere.
The four countries to illustrate these points are:
Italy
France
Norway
Costa Rica
A. ITALY
Mr. Giovani Campanelli and Mrs. Donatina Paradiso were unable to have a child. They lived in
Italy. They put themselves forward as adoptive parents, and in 2006 obtained authorization from an
Italian Court to adopt a foreign child. They waited in vain for a child who was eligible for adoption.
Page/INTERNATIONAL LAW CONCERNING ART 47
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