Regulating Commercial Global Surrogacy: the Best Interests of the Child
10 Jun 2017-Vol. 2, Iss: 3, pp 64-73
TL;DR: In this article, the authors advocate for the development of international law to regulate commercial global surrogacy in order to prevent children's rights violations and act in the best interests of the child.
Abstract: Concurrent with the decline in intercountry adoption, there has been an increase in commercial global surrogacy over the past decade, but no international law yet exists to reconcile conflicting national laws and protect the interests of infant/child, surrogate mother, and commissioning parent(s). Previous discussion has focused on the vulnerability of the surrogate mothers and insufficient attention has been given to the best interests of the child, despite the fact that some children have been left stateless for years as a result of conflicting policies. Using the principles of the Hague Convention on Intercountry Adoption, social workers and policy makers should advocate for the development of international law to regulate commercial global surrogacy in order to prevent children’s rights violations and act in the best interests of the child.
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TL;DR: In this paper, the authors explore the ethical and legal complexities arising from the controversial issue of surrogacy, particularly in terms of how they affect fundamental rights of children and parents, and outline an organic and exhaustive framework of rules, which should take into account the multiplicity of interests at stake, in keeping with a fair and sustainable balance when regulating such practices.
Abstract: Background and objectives: To explore the ethical and legal complexities arising from the controversial issue of surrogacy, particularly in terms of how they affect fundamental rights of children and parents. Surrogacy is a form of medically-assisted procreation (MAP) in which a woman “lends” her uterus to carry out a pregnancy on behalf of a third party. There are pathological conditions, such as uterine agenesis or hysterectomy outcomes, that may prevent prospective mothers from becoming pregnant or carry a pregnancy to term; such patients may consider finding a surrogate mother. Many issues relating to surrogacy remain unresolved, with significant disagreements and controversy within the scientific community and public opinion. There are several factors called into play and multiple parties and stakeholders whose objectives and interests need to somehow be reconciled. First and foremost, the authors contend, it is essential to prioritize and uphold the rights of children born through surrogacy and heterologous MAP. Materials and methods: To draw a parallel between Italy and the rest of the world, the legislation in force in twelve European countries was analyzed, eleven of which are part of the European Union (France, Germany, Italy, Spain, Greece, Netherlands, Belgium, Denmark, Lithuania, Czech Republic and Portugal) and three non-members of the same (United Kingdom, Ukraine and Russia), as well as that of twelve non-European countries considered exemplary (United States, Canada, Australia, India, China, Thailand, Israel, Nigeria and South Africa); in particular, legislative sources and legal databases were drawn upon, in order to draw a comparison with the Italian legislation currently in force and map out the evolution of the Italian case law on the basis of the judgments issued by Italian courts, including the Constitutional and Supreme Courts and the European Court of Human Rights (ECHR); search engines such as PubMed and Google Scholar were also used, by entering the keywords “surrogacy” and “surrogate motherhood”, to find scientific articles concerning assisted reproduction techniques with a close focus on surrogacy. Results: SM is a prohibited and sanctioned practice in Italy; on the other hand, it is allowed in other countries of the world, which leads Italian couples, or couples from other countries where it is banned, to often contact foreign centers in order to undertake a MAP pathway which includes surrogacy; in addition, challenges may arise from the legal status of children born through surrogacy abroad: to date, in most countries, there is no specific legislation aimed at regulating their legal registration and parental status. Conclusion: With reference to the Italian context, despite the scientific and legal evolution on the subject, a legislative intervention aimed at filling the regulatory gaps in terms of heterologous MAP and surrogacy has not yet come to fruition. Considering the possibility of “fertility tourism”, i.e., traveling to countries where the practice is legal, as indeed already happens in a relatively significant number of cases, the current legislation, although integrated by the legal interpretation, does not appear to be effective in avoiding the phenomenon of procreative tourism. Moreover, to overcome some contradictions currently present between law 40 and law 194, it would be appropriate to outline an organic and exhaustive framework of rules, which should take into account the multiplicity of interests at stake, in keeping with a fair and sustainable balance when regulating such practices.
27 citations
TL;DR: A critical interpretative review of existing qualitative research investigating accounts of ‘lived experience’ of surrogates and intended parents from a relational perspective proposes a typology of surrogacy arrangements that goes beyond the division between altruistic versus commercial, and traditional versus gestational surrogacy.
Abstract: Based on a critical interpretative review of existing qualitative research investigating accounts of 'lived experience' of surrogates and intended parents from a relational perspective, this article proposes a typology of surrogacy arrangements. The review is based on the analysis of 39 articles, which belong to a range of different disciplines (mostly sociology, social psychology, anthropology, ethnology, and gender studies). The number of interviews in each study range from as few as seven to over one hundred. Countries covered include Australia, Canada, Greece, India, Iran, Israel, Italy, Mexico, Norway, Russia, Sweden, UK, Ukraine, and the USA. Most studies focus only on surrogacy practices in one country (although often with intended parents from other countries), and some include several countries (e.g. interviewees from several countries or fieldwork in different field-sites). The proposed typology goes beyond the division between altruistic versus commercial, and traditional versus gestational surrogacy, in order to inform further research and to contribute to bioethical and policy debates on surrogacy in a transnational context. Four types of relations are identifiable: open, restricted, structured, and enmeshed. The criteria which influence these relationships are: the frequency and character of contact pre- and post-birth; expectations of both parties; the type of exchange involved in surrogacy arrangements; and cultural, legal, and economic contexts. The theoretical contribution of the article is to further the development of a relational justice approach to surrogacy.
23 citations
Cites background from "Regulating Commercial Global Surrog..."
...While there are no official global statistics, it is well established that surrogacy has recently increased exponentially (2), as has research in this field....
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...Contact before and after the birth is regulated by the contract, including: (1) lifestyle rules and behavioural restrictions; (2) rules governing breastfeeding, and ‘intimate’ form of contact with the baby; and (3) rules governing viewing, handling, and future relationships with the newborn (37)....
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...Drawing on a reproductive rights paradigm we argue that surrogacy is intrinsically neither ethical or unethical, but rather that its ethical status must be assessed contextually, depending on how well it is possible in a given context to: (1) negotiate potentially conflicting interests; (2) to secure reproductive rights and needs of all the involved parties in a satisfactory way; and (3) to build a relationship that is sustainable for surrogates, intended parents, and surrogacy-conceived children during and after conception, pregnancy, and birth....
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...With the research question in mind we included articles which: (1) focus solely or predominantly on surrogacy; (2) are based on ethnographic data and/or in-depth interviews with surrogate mothers and intended parents, preferably including substantial quotes from respondents’ own narratives (including some relevant studies of online forums or email interviews); and (3) include analysis of relations between surrogates and intended parents, and surrogacy-conceived children and other parties involved, such as clinic staff, doctors, and agents....
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Posted Content•
TL;DR: The legal and ethical dilemmas arising from international commercial surrogacy have been examined by the Hague Conference on Private International Law (HCIL) whose Permanent Bureau has prepared two preliminary reports, which seek to address the practical needs in the area and examine whether a multilateral convention might address the private international law issues arising under international surrogacy arrangements as discussed by the authors.
Abstract: The last 10 years have witnessed rapid growth in the practice of international commercial surrogacy. This has created serious legal and ethical dilemmas with respect to the nationality and parentage of children conceived under these agreements and the potential exploitation of not only surrogate mothers, but also the intending (or commissioning) parents. These dilemmas have been examined by the Hague Conference on Private International Law, whose Permanent Bureau has prepared two preliminary reports, which seek to address ‘the practical needs in the area’ and examine whether a multilateral convention might address the private international law issues arising under international surrogacy arrangements.
16 citations
07 Feb 2018
TL;DR: In this article, the authors present current knowledge on selling surrogacy support services in developing countries and discuss ethical issues that are present and unresolved by following the journey of surrogate mothers and highlighting the position of children whose well-being is generally assumed in surrogacy arrangements.
Abstract: This review presents current knowledge on selling surrogacy support services in developing countries. Rather than focusing on dichotomous positions, ethical issues that are present and unresolved are discussed by following the journey of surrogate mothers and highlighting the position of children whose well-being is generally assumed in surrogacy arrangements. Ethical concerns about conflicts of interest, fundamental freedoms, autonomy, informed consent, self-determination, privacy, and protecting children are shared across countries. International commercial surrogacy is predicated on profit made by service providers and intermediaries where producing a healthy, desired child for the consumer of services is the goal. As such, business models conflict with the well-being of women and children. Selling international surrogacy support services presents complex and multi-layered problems that must be understood in the context of a growing body of knowledge to ensure ethical deliberations are not based on fallacious premise or assumed propositions. International surrogacy is not a level playing field. Would-be parents and practitioners need the information and the opportunity to grapple with ethical issues when considering surrogacy arrangements, or enabling or profiting from it.
12 citations
Cites background from "Regulating Commercial Global Surrog..."
...Child protection concerns related to children born of surrogacy are too often dismissed as exceptional cases when scandals are reported because the well-being of children is generally assumed.(17,18) To address the urgent need for national and international child-focused responses to surrogacy arrangements, International Social Service (ISS) Geneva has brought together a group of international experts on surrogacy....
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01 Mar 2021
TL;DR: The authors found that in the US, interviewed surrogates, intended parents and professionals understood surrogacy as an exchange of both gifts and commodities, where gift-giving, reciprocity, and relatedness between surrogates and intended parents were the major tropes.
Abstract: In this paper, we draw on three ethnographic studies of surrogacy we carried out separately in different contexts: the western US state of California, the south Indian state of Karnataka, and the western Russian metropolis of St Petersburg. In our interviews with surrogate mothers, intended parents, and surrogacy professionals, we traced the meanings and ideologies through which they understood the clinical labour of surrogacy. We found that in the US, interviewed surrogates, intended parents and professionals understood surrogacy as an exchange of both gifts and commodities, where gift-giving, reciprocity, and relatedness between surrogates and intended parents were the major tropes. In India, differing narratives of surrogacy were offered by its different parties: whilst professionals and intended parents framed it as a win-win exchange with an emphasis on the economic side, the interviewed surrogate mothers talked about surrogacy as creative labour of giving life. In Russia, approaches to surrogacy among the interviewed surrogate mothers, professionals and intended parents overlapped in framing it as work and a businesslike commodity exchange. We suggest these three different ways of ethical reasoning about the clinical labour of surrogacy, including justifications of women's incorporation into this labour, were situated in local moral frameworks. We name them "repro-regional moral frameworks", inspired by earlier work on moral frameworks as well as on reproductive nationalisms and transnational reproduction. Building on these findings, we argue that any international or global regulation of surrogacy, or indeed any moral stance on it, needs to take these local differences into account.
11 citations
References
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TL;DR: The practice of international adoption of children is critiqued, using Rawls' egalitarian concept of a distributive method of social justice, and alternate views, including libertarian and utilitarian perspectives are presented.
Abstract: The practice of international adoption of children is critiqued, using Rawls' egalitarian concept of a distributive method of social justice. From this perspective, international adoption may be perceived as contradictory to principles of social justice by ignoring the social context within which it occurs. Social contexts that frequently surround international adoption are severe poverty and the disenfranchisement of the adopted child's biological family; the disenfranchisement of certain children because of their lower social status; gender oppression and discrimination against female children; risk to children's rights to the knowledge of their birth history and parentage; risk to children's rights to identification with their ethnic, cultural, and national group; and practices that may involve abduction, deceit, and trafficking in children. The article presents alternate views, including libertarian and utilitarian perspectives. Solutions from two international conventions are critiqued and implications are discussed for social work policy advocacy, practice, and research.
74 citations
TL;DR: This article explored the intersections of power within transnational surrogacy in India, using the lens of geography to examine surrogate women's and commissioning parents' experiences and perceptions of space and mobility.
Abstract: This article explores the intersections of power within transnational surrogacy in India, using the lens of geography to examine surrogate women’s and commissioning parents’ experiences and perceptions of space and mobility. The author analyzes ethnographic data within a geographical framework to examine how actors embody and experience power relations through space and movement, revealing how power is not simply about who moves and who doesn’t. Rather, in recognizing the specificity of the Indian context, and how different actors inhabit and move through distinct spaces, a geographical lens reveals the shifting complexity of structures of agency and power. Drawing on extensive ethnographic fieldwork in India, the author traces how both surrogate mothers and commissioning parents experience moments of mobility and movement punctuated by intervals of immobility and stillness, in distinct ways that illuminate the power relations inherent in transnational reproduction.
59 citations
TL;DR: The apparent decline in involvement of surrogacy agencies is charted and the potential for exploitation where scrutiny of arrangements and follow up are limited is suggested, and the need for a more integrated approach to review of surrogateacy arrangements both nationally and internationally is argued.
Abstract: Since 2007, the numbers of UK Parental Orders granted following surrogacy have markedly increased. More recently, eligibility criteria have been extended to unmarried heterosexual couples and same-sex couples rather than only married couples. Numbers seeking fertility treatments, including through surrogates, outside their country of residence have also increased. This paper presents the limited data currently available – from UK General Register Offices, Child and Family Court Advisory and Support Service for England and the UK surrogacy agencies: COTS, Surrogacy UK, British Surrogacy Centre – to consider potential reasons for the increase and to consider policy and practice implications. It charts the apparent decline in involvement of surrogacy agencies and suggests the potential for exploitation where scrutiny of arrangements and follow up are limited. It recommends improvements to data collection and argues the need for a more integrated approach to review of surrogacy arrangements both nationally and internationally.
59 citations
Book•
16 Apr 2014
TL;DR: This book discusses social work and the physical environment in international social work, including issues Particularly Affecting Women, and the Millennium Development Goals and Beyond.
Abstract: Chapter 1: International Social Development Chapter 2: Human Rights Chapter 3: Human Trafficking Chapter 4: International Child Welfare Chapter 5: War and Conflict Chapter 6: AIDS Chapter 7: Issues Particularly Affecting Women Chapter 8: Social Work and the Physical Environment Chapter 9: Millennium Development Goals and Beyond Chapter 10: A Call to Action Appendix A: Universal Declaration of Human Rights Appendix B: Opportunities in International Social Work
58 citations
TL;DR: In this paper, the authors evaluate both the strengths and weaknesses of the Hague Convention on Intercountry Adoption in achieving this purpose and also in protecting a second vulnerable population, birth families.
Abstract: The Hague Convention on Intercountry Adoption, designed to protect the best interests of the child in intercountry adoption, has been signed by 83 nations. We evaluate both the strengths and the weaknesses of the Convention in achieving this purpose and also in protecting a second vulnerable population, birth families. A case study example of the United States’ implementation of the Hague requirements reveals several weaknesses with respect to non-Convention countries as sending nations, financial oversight, and oversight of foreign collaborators. International birth families, especially birth mothers giving consent to an adoption, are often vulnerable because of a lack of power and resources, as well as different cultural understandings of the nature of family and adoption. We conclude that in order to protect vulnerable children and birth families, individual sending and receiving countries need to supplement the Hague Convention with specific, contextually appropriate laws and regulations.
46 citations