Suspension of Citizenship: Ethical Concerns in International Commercial Surrogacy and the Legal Possibility of Stateless Children.

AuthorCurtin, Rachael

TABLE OF CONTENTS I. INTRODUCTION II. THE LEGAL PROGRESSION OF Ies A. The Development of Assisted Reproductive Technology (ART) B. The Legal Status of Surrogacy in Asia, Europe, and the United States 1. Regulation in Thailand and India 2. Regulation in European Countries 3. Regulation in the United States C. Surrogacy from an International Organization Perspective: The Hague Conference on Private International Law D. Surrogacy Today III. ApPROACHES TO ISSUES OF' PARENTAGE AND CITIZENSHIP A. Comparing the Hague's Stance on Surrogacy and Parentage to the 1993 Hague Convention on Intercountry Adoption 1. Comparing Intercountry Adoption and ICS 2. Oversight and Cooperation between Foreign Jurisdictions 3. Comparing Possible Surrogacy Regulations to National Compliance Standards 4. Concerns of Discrimination in Eligibility Assessments 5. Concerns about ICS Amounting to the Sale or Commodification of Children B. Ad Hoc Determinations of Parentage and Citizenship 1. Spain as an Example of the Reasoning behind Ad Hoc Determinations 2. Precedent for Ad Hoc Determinations in Europe IV. SOLUTION V. CONCLUSION I. INTRODUCTION

Throughout the summer of 2020, children born in Ukraine through transnational surrogacy arrangements were left stranded in what has been described as a "baby hotel." (1) Ukraine, a leading nation in commercial surrogacy, responded to COVID-19 by blocking international visitors from entering its borders. (2) With prospective parents unable to retrieve babies delivered during the shutdown, the surrogacy company that facilitated the transactions arranged for the babies to stay at a small hotel outside of Kyiv. (3) While the babies were being cared for by nurses, the prospective parents did not know when they would be able to meet their children. (4) This particular state of limbo has a fairly clear end: once prospective parents are able to travel into Ukraine, they can presumably be with their children. However, the legal uncertainty surrounding transnational commercial surrogacy transactions (referred to as international commercial surrogacy, or ICS) leaves open the possibility of a more extensive state of suspension. (5)

Developments in assisted reproductive technology (ART) and increased globalization have led to issues in the determination of legal parentage for children born through ICS arrangements. (6) Individuals seeking to procreate through surrogacy are referred to as the intended, or prospective, parents; (7) those who are genetically related to the children are referred to as the biological parents; (8) and those who carry and give birth to the children are the gestational, or surrogate, mothers. (9) Beyond the roles of parentage, surrogacy can be divided into altruistic surrogacy (the surrogate is not financially compensated beyond reimbursement for medical costs associated with gestation) and commercial surrogacy (the surrogate is financially compensated beyond reimbursement for medical costs associated with gestation). (10) Some countries prohibit all forms of surrogacy, while others either only prohibit commercial surrogacy or have no prohibitions at all. (11) Three notable geographical areas that allow commercial surrogacy include Russia, Ukraine, and certain US states. (12) Because altruistic surrogacy arrangements typically involve parties that share a personal connection, and most concerns regarding statelessness of children involve commercial surrogacy, this Note will focus on commercial surrogacy arrangements.

Incompatible parentage laws have left gaps in the process for securing citizenship for children born through ICS arrangements. For example, the United Kingdom recognizes the surrogate mother as the legal parent, while giving the prospective parents the ability to transfer parentage through adoption or a parental order after birth. (13) Until such transfer, if the child is born in a foreign country, he or she will not be a UK citizen. (14) This can leave the child stateless if the surrogate's country of citizenship recognizes the prospective parents, and not the surrogate who has surrendered parentage, as the legal parents. (15) A stateless child is not a citizen of any country, thus full protection by means of citizenship-conferred rights and access to public welfare programs may be at risk. (16) A child who is abandoned by his or her intended parents and left stateless may have to wait years for citizenship to be conferred, meaning that the child may not be eligible for adoption until that time. (17) A well-reported instance of abandonment of a child born through ICS is the 2014 case of Baby Gammy. (18) Baby Gammy's surrogate mother became pregnant with twins through an ICS arrangement with an Australian couple. (19) The surrogate mother reported that the prospective parents ultimately only claimed one twin after learning that the other. Baby Gammy, had been diagnosed with Down Syndrome as well as a heart and lung condition. (20) The Australian couple retrieved the other twin and left Baby Gammy behind with the surrogate mother, who raised him despite her struggle to pay for his expenses. (21) While this case did not ultimately involve difficultly securing citizenship for Baby Gammy, it did bring attention to issues surrounding ICS, namely the lack of protection for children and insufficient coordination among states. (22)

This Note assesses the effect that ICS may have in bringing about child statelessness to highlight flaws that can be remedied to mitigate potential harms to such children. Part II presents the space that ICS has occupied as well as the issues associated with such transactions when coupled with a lack of regulation and international cooperation. Part III discusses different approaches that can be taken in ICS regulation and analyzes how transnational surrogacy arrangements can fit into already-existing best practices for international adoption. Part IV presents a path to a solution that requires cooperative practices and policies.

The proposed solution requires an ethics-based approach supported by the international community through discussion and cooperation. The international community should recognize a best practice policy approach that promotes the interests of children born through ICS arrangements. Such an approach would require an international forum to facilitate multistate negotiations that ideally end in ratification of an ICS framework by a host of participating states, (23) with an acknowledgment that as reproductive technologies continue to evolve and more data regarding ICS and related policies are collected, amendments and recommendations for contractual provisions may become necessary. The solution recommends that some policies that already exist in the intercountry adoption context be imported to the ICS context. Finally, the solution addresses the application of ad hoc judgments in jurisdictions that prohibit ICS arrangements.


    1. The Development of Assisted Reproductive Technology (ART)

      Advances in technology and medicine have led to an increasing number of people using ART to procreate. (24) ART is a broad term for techniques used to conceive without sexual intercourse; techniques now available include in vitro fertilization, gamete donation, donor insemination, and intrauterine insemination. (25) ART procedures are implemented in surrogacy arrangements that use the surrogate's egg as well as gestational surrogacy arrangements--in which the embryo is developed in vitro before being transferred to the womb of the surrogate mother. (26) Surrogacy allows individuals who could not otherwise conceive to be biologically related to a child; such individuals include older women, women who have had hysterectomies, other infertile individuals, LGBTQ couples, and single prospective parents. (27)

      Surrogacy as a means of procreating has reached a global scale, with interested parties crossing international borders to use surrogacy services available in areas with fewer restrictions. (28) This global movement for surrogacy has multiple names, including procreative tourism, reproductive tourism, reproductive exile, and cross-border surrogacy. (29) Surrogacy is legal in a limited number of countries, including Ukraine, Georgia, Russia, Kazakhstan, Greece, India, and parts of Mexico and the United States. (30) Some areas that do allow surrogacy have limitations on who can be a prospective parent in a surrogacy arrangement; for example, Greece excludes same-sex couples from eligibility. (31) Limitations on domestic eligibility increase the number of prospective parents seeking surrogacy arrangements internationally. (32) Two leading countries of citizenship for prospective parents in ICS are Australia and the United States, which legalized same-sex marriage in 2017 and 2015. respectively. (33) In 2018, same-sex couples represented approximately 40 percent of surrogacy clients. (34)

    2. The Legal Status of Surrogacy in Asia, Europe, and the United States

      A significant consideration when determining where prospective parents will seek surrogacy arrangements is cost. India previously attracted a high volume of international prospective parents seeking surrogates because of comparatively low cost and minimal regulation. (35) While a surrogacy arrangement in the United States might cost around $70,000 (a conservative estimate), a surrogacy arrangement in India would cost about $25,000. (36) India has since prohibited the practice of ICS; consequently, by 2018, commercial movement shifted, and Ukrainian surrogacy companies held over a quarter of the global surrogacy market due to less restrictive laws. (37)

      ICS has been criticized on several grounds, including the lack of regulation, the exploitative nature of the business, and the commodification of children. (38) Monitoring and oversight of ICS is difficult because countries usually do not record surrogate births separately from other births, and many surrogacy...

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