Regulation of international surrogacy arrangements: do we regulate the market, or fix the real problems?

• Author: Hale, Bruce

ABSTRACT

Recent discussions about how to mitigate the international issues that have arisen as a result of international surrogacy arrangements have focused on ways to regulate the surrogacy market itself. The surrogacy market may not be the actual problem that needs to be regulated, but it does expose flaws that need to be addressed in the international private law system.

1. INTRODUCTION

   Recent advancements in medical technology have enabled the expansion of third-party assisted reproduction (surrogacy) for infertile couples and single individuals. When surrogacy arrangements involve individuals from more than one nation, the legal status of the individuals and the resulting child may be uncertain. Situations where "stateless" children were born through international surrogacy arrangements have prompted a discussion about whether some form of international regulation is needed, such as a Hague Convention on International Surrogacy.

   The Permanent Bureau of the Hague Conference on Private International Law's Council on General Affairs and Policy is currently engaged in research to determine how to effectively address the issues posed by international surrogacy arrangements. (2) Of greatest concern are situations where the legal parentage, nationality, and immigration status of the child born through international surrogacy are unclear due to conflicting national laws governing these matters. Of additional concern is the potential for exploitation of individuals in the international surrogacy process, particularly the exploitation of the women who act as gestational carriers.

   The question, therefore, is if and how to establish a regulatory framework to help avoid stateless children and exploitation of women. One approach would be to regulate the international surrogacy industry itself. This industry regulation could take the form of a Convention on Surrogacy that establishes rules specifically for surrogacy arrangements involving participants from more than one country. Another approach would be to regulate the acceptance of parentage documents between states. This approach could potentially be accomplished with existing international agreements, or through the implementation of new international agreements that are not necessarily specific to international surrogacy arrangements.

2. UNDERLYING MARKET FORCES

   Before examining potential options for a solution to the problems posed by international surrogacy arrangements, it may be helpful to examine the parameters of the international surrogacy market. (3) It is undeniable that the commissioning of children through surrogacy--for money--represents a market. (4) Any solution to the problems posed by international surrogacy arrangements must take into consideration the underlying market forces at work in these arrangements.

   The desire to reproduce is a powerful force in this market. Modern gestational surrogacy can be seen as a legitimate fertility treatment option for the infertile who wish to reproduce. The choice to reproduce is a fundamental human right. (5) There are many ways in which people can choose to reproduce, including surrogacy. Surrogacy is often conflated with adoption, but the markets for surrogacy and adoption are distinct. People who choose to pursue surrogacy do not always do so as an alternative to adoption.

   Surrogacy has existed in various forms throughout history. (6) When fertility treatment advanced to separate the component parts of conception and gestation, market forces drove the growth of international surrogacy. (7) The international surrogacy market exists for two reasons: barriers to domestic surrogacy or other assisted reproductive options (evidenced by the pursuit of surrogacy in the United States by European intended parents), and cost savings (evidenced by the growth of surrogacy in lower cost nations). (8) The overall value of the market is unknown, but a report in 2010 estimated that the value of the surrogacy industry in India alone would reach USD2.3 billion by 2012. (9) In order to maximize profits, international surrogacy brokers will operate in the countries with the lowest regulatory restrictions. (10) Price is not everything in this market, however, as the intended parents will have their own personal criteria for deciding in which country to pursue surrogacy. (11)

   Comparisons between the surrogacy market and the adoption market are frequent, but adoption and surrogacy are not "so similar that analysis of one can suggest solutions for the other," as suggested by one scholar. (12) Nor are adoption and surrogacy complete substitutes for each other--persons seeking parenthood do not always move smoothly and seamlessly between the two options. (13) The similarity between surrogacy and adoption rests in the fact that the child at the center of the process is born to a woman who does not keep it. The similarities quickly end there. Adoption is a process to transfer parental rights and responsibilities from one or more parties to another party or parties. In adoption, the state responsibility toward the existing child is paramount, particularly where the child is in state custody. Surrogacy, on the other hand, is a therapeutic option for the infertile, specifically those for whom being pregnant is physically impossible or medically contra-indicated. Surrogacy is a reproductive process where a child is created directly as a result of the actions of the intended parents. Of course, modern surrogacy (14) is achieved through medical intervention. It is also important to remember that adoption is a universally accepted mechanism to deal with the issue of raising children who (for any number of reasons) have no legal or de facto parents, while commercial surrogacy remains a sometimes controversial process that is permitted in certain jurisdictions and banned--or rising to the level of a criminal offense--in others. (15)

   Certainly, adoption and surrogacy may be seen as alternate processes to achieve parenthood. However, surrogacy may be pursued as a logical extension of fertility treatment that may start when a heterosexual couple fails to conceive "naturally" beyond achieving parenthood, surrogacy achieves reproduction. Likewise, the "socially infertile" (such as a homosexual male couple) may have no realistic choice but to pursue surrogacy (including reproduction for one or both of the partners) in order to have children. The surrogacy market and the adoption market must therefore be seen as separate, overlapping markets for the simple reason that prospective parents have certain barriers and choices in how to achieve parenthood. Incentives for adoption may be beneficial to the adoption market, but it is not proper to use incentives (and disincentives) to undermine individual reproductive choice, particularly when legal barriers restrict market mobility.

   Market-based mechanisms have allowed international surrogacy to operate efficiently, with the result that this reproductive option can often happen as quickly and as cost effectively as humanly possible. For intended parents who have often waited many years to fulfill the lifelong dream of having children, the availability of surrogacy as a choice is extremely beneficial. It is not unusual for there to be extraordinary delays in being able to adopt a child internationally. In addition to the delays in meeting the eligibility processes set out by adoption authorities (including the Central Authority in the adoptive parents' country), once the overseas country approves the adoption, delays of three to five years are not uncommon, and are increasing. (16) In Australia, for example, delays have been described as "glacial" and have been up to 8 years from beginning to end. (17) If an adoption-based model of regulation were extended to international surrogacy, the effect on the intended parents' right to reproduce would be disastrous. Consider, as an example, a married couple where the woman has just had a hysterectomy. This couple may choose to pursue surrogacy to have a child, but will need to move quickly in order to use the woman's eggs in the process. A lengthy application and vetting process would prevent the couple from having a child genetically related to both of them.

   Market forces are central to the consideration of international regulatory schemes for international surrogacy arrangements. While the market is price-sensitive, with the concomitant shift to lower-cost areas, it is not completely elastic. The desire to reproduce and the timing issues inherent in human reproduction are powerful influences in the decision-making of the intended parents. Significant barriers to international surrogacy arrangements will necessarily force some market participants to other means of achieving parenthood, with perhaps more risk and less legitimacy. If we lose sight of these market forces that underlie international surrogacy, attempts to regulate this market may lead to unwanted consequences that defeat the purposes of regulation and shift the issues elsewhere.

3. IS SURROGACY THE REAL ISSUE?

   The real issue with surrogacy arrangements, and with assisted reproductive technology in general, is that they challenge societal notions of identity and the family structure in relation to the public and private spheres. (18) This challenge creates the false notion that international surrogacy arrangements themselves are the problem, rather than the inconsistent manner in which nations assign parentage and nationality. When the problem is viewed as inherent to international surrogacy arrangements, inappropriate conclusions about how to mitigate the negative effects of the market may result.

   In one of the first proposals for a Convention on International Surrogacy Arrangements to be published, Dr. Katarina Trimmings and Professor Paul Beaumont set out their position in International Surrogacy Arrangements: an Urgent Need for Regulation at the International Level. (19) The Trimmings and...