Surrogacy Law And Human Rights

Surrogacy presents particularly complex questions for human rights law and theory. This book provides a unique and insightful examination into the underexplored issues of how domestic and international law is responding to the sharp increase in the use of surrogacy. The work presents critical analysis of the current regulation of surrogacy via domestic law in Australia, India and the USA, and international law in the form of the UN Convention on the Rights of the Child. Including a wide range of views from academics and practitioners around the world, the contributors consider what could be done to further protect the rights of all persons involved in surrogacy arrangements. This in-depth study of the international and domestic law governing surrogacy provides much needed scholarly knowledge of this contemporary phenomenon, along with recommendations for improvement, regulation and reform. The book will be of great importance to human rights and legal scholars, and well as practitioners in this field.

The observation that mater semper certa est remains accurate under most legal systems in the world. Maternity is defined as the personal status (filiation) of a woman who gave birth to a child. It is typically complemented by the fatherhood of the man from whom the child biologically originates (often quem nuptiae demonstrant). However, in some states, a kind of competitive way of acquiring the legal status of mother and father (or “homosexual parents A and B”) has been introduced via concluding a contract with a surrogate mother. Usually with a woman coming from poorer societies and with the assistance of professional intermediaries and organizers. The postulates to change substantive family law, or at least to recognize the effects of foreign law and procedures (a kind of “procreative tourism”), appear nowadays also in states generally prohibiting surrogate motherhood. The issues discussed in this volume concern both national law and international court cases. Recent examples include the opinion of the European Court of Human Rights of 10 April 2019 initiated by the French Cour de cassation, the judgement of the German Bundesgerichtshofof 20 March 2019, and dilemmas of Polish administrative courts. Focusing on the international perspective, the present volume as well as an accompanying book in Polish are the results of the international cooperation of over 30 experts from both member states and observer states of the Council of Europe. The monograph is structured “from the general to the detail” and includes a comprehensive view as well: from the issues of philosophy and sociology of law, to human rights standards of national constitutions and international agreements, to principles of ordre public of forum and their protection with measures of private, public, and penal law. This allows readers, including legislators and judges, the better understanding of the fundamental legal problems that surrogate motherhood brings, both in states where law creates them in a narrower or wider extent, and in other countries of the world, to which these problems can be imported with the movement of people and with de lege lata and de lege ferenda postulates.

Surrogacy is heavily promoted by the stagnating IVF industry which seeks new markets for women over 40, and gay men who believe they have a 'right' to their own children and 'family foundation'. Pro-surrogacy groups in rich countries such as Australia and Western Europe lobby for the shift to commercial surrogacy. Their capitalist neo-liberal argument is that a well-regulated fertility industry would avoid the exploitative practices of poor countries. Central to the project of transnational surrogacy is the ideology that legalized commercial surrogacy is a legitimate means to provide infertile couples and gay men with children who share all or part of their genes. Women, without whose bodies this project is not possible are reduced to incubators, to ovens, to suitcases.

This book is an essential guide on surrogacy, discussing various legal issues that arise in surrogacy cases. It provides a comprehensive coverage to various issues pertaining to surrogacy arrangements due to failure to meet the needs of those involved in surrogacy, be it the intended parents or the surrogate mother, with special emphasis on the most vulnerable party -- the surrogate child. In the wake of this existing imbalance, the call to reform the practice of surrogacy has also increased. The book provides a comprehensive coverage to various laws and policy regulations in existence dealing with surrogacy, and unravels the latest trends and developments happening around the world as surrogacy gains importance. The international perspectives highlight policies and practices being adopted and followed by various nations with regard to surrogacy regulation and associated parenthood rules. This book also analyses some of the significant cross-border disputes revolving around surrogacy, and explores briefly the jurisprudence of the European Court of Human Rights on matters of parentage and citizenship for children born of trans-national surrogacy with special reference to the prospects of a convention on international surrogacy currently being studied by The Hague Conference on Private International Law. Further, it highlights the issues and questions relating to surrogacy arrangements that are so far unresolved and unanswered and suggests measures for improvements to the existing proposed surrogacy legislation in India and need for uniform international regulation. The book is a great resource for legal practitioners, academics, students, policy-makers, infertility clinics, and charitable organizations working on this issue.