Surrogacy, Law and Human Rights

Paula Gerber, Katie O'Byrne

• Editorial: Routledge
• Año: 2016
• ISBN:
  9781317048213
• Edición: 1
• Categoría: Medicine
• Categoría: Health Policy

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.

Chapter 1
Surrogacy and Human Rights: Contemporary, Complex, Contested and Controversial

Katie O’Byrne and Paula Gerber

I. Introduction

At the intersection of science, law, ethics and human rights, surrogacy¹ presents a myriad of legal and moral questions, regulatory challenges and practical problems. Given these flashpoints, the global debate on surrogacy regulation is unsurprisingly both intense and sophisticated, providing a rich source of material for policy- and law-makers to consider. However, one area that has not previously been the subject of sustained and multidimensional analysis in a collection such as this is the relationship between surrogacy and human rights,² and how human rights might influence the regulation of surrogacy.

The purpose of this edited collection is to collate and explore a wide range of human rights perspectives on international and domestic surrogacy regulation. In an area that interacts so fundamentally with the most intimate of human needs, the operation of the human body, the exercise of free will, the possibility of exploitation and the generation of life itself, using human rights as a framework for analysis can illuminate how best to protect the most important and vulnerable interests of those involved.

While the focus of many of the chapters is on Australian law and regulation, there are also chapters analysing the issue of surrogacy and human rights from an international law standpoint, as well as in the domestic law of other jurisdictions. In order to ensure a rich array of opinions, this collection includes a wide range of views from academics and practitioners around the world who have varied expertise and experience.

II. Themes and Contents

To provide a context for the debate, the collection begins with a personal and practical reflection on surrogacy. Melbourne lawyer Tony Wood shares his real life journey through surrogacy in the US in the early 2000s. Tony and his same-sex partner had a strong desire to experience the joys of parenthood, and so engaged a surrogate, who carried first their son and later their daughter. Tony and his partner built a relationship with the surrogate and provided both financial and emotional support throughout her pregnancies. She is now a special person in the lives of their kids who, Tony assures the reader, are doing just fine. Tony is no casual observer of the surrogacy debate – what he witnessed and experienced prompts him to challenge value judgments about commercial surrogacy and same-sex parenting. Given the often-heated legal and ethical debates that surround these issues, Tony’s story is a moving and heart-warming example of how many human lives can be changed positively through one surrogacy experience.

Expanding this exploration of context by adopting a broader theoretical perspective, Kate Galloway’s chapter delves into some of the deeper philosophical concepts and ethical justifications underpinning the debate about whether to regulate surrogacy and why. Galloway begins with an analysis of liberal approaches to reproductive and contractual freedom in view of state intervention in surrogacy regulation, before turning to examine feminist critiques. Galloway suggests that the Kantian moral perspective, which prioritises human dignity in order to avoid commodification of the human body, assists in protecting parties with little power – particularly the child and the surrogate. It is from this foundation that a human rights perspective on surrogacy arrangements can be developed.

The remaining academic contributions are presented in three parts. Tammy Johnson’s chapter and Anita Stuhmcke’s chapter each provide an analysis of the surrogacy regulation landscape in Australia. Johnson focuses on the fragmentation of surrogacy regulation across Australian states and territories, suggesting that this curbs the freedom of individuals to procreate. She proposes a harmonised model for national reform drawn from existing inquiries and research. Her considerations may also be broadly relevant to other federated nations with disparate surrogacy regulation, such as the US.

Stuhmcke observes that Australia is one of only two countries that have laws making it a criminal offence for residents to pursue surrogacy arrangements overseas. She examines the consequences of extraterritorial criminalisation of surrogacy in the Australian Capital Territory, Queensland and New South Wales, and argues for repeal of these provisions in order to promote the liberty of reproductive choice. In support of this position, she notes that there is no evidence that extraterritorial criminalisation serves the purposes of shaping behaviour, promoting transparency or reducing exploitation.

The next three chapters examine the human rights of particular participants in the complex network of relationships that exists in each surrogacy arrangement. First is an examination of the rights of children born via surrogacy arrangements, using the UN Convention on the Rights of the Child (‘CRC’) as the lens through which to assess whether the practice of surrogacy, and the laws regulating it, are consistent with the best interests of children born via surrogacy. Surrogacy laws and practices are analysed according to:

• the right of the child to freedom from discrimination;

• the best interests of the child;

• the child’s rights to identity and to be cared for by his/her parents; and

• the prohibition on the sale of children.

Australia is then used as a case study to measure a selection of domestic laws against the CRC, in particular immigration and citizenship laws, family law and criminal law. The results of this analysis highlight the importance of using a child-centred human rights approach to surrogacy.

In Chapter 7, Sonia Allan explores the human rights ramifications of entering into a surrogacy arrangement from the perspective of the surrogate herself, especially in cases of compensated surrogacy. Allan examines issues including human trafficking, exploitation of inequalities and lack of informed consent. In one of the most contested and controversial areas of surrogacy regulation, Allan argues that the risks of compensated surrogacy to the human rights of the surrogate render it an unacceptable practice. Surrogacy regulation in the form of minimum legal standards in domestic law could be made more consistent in order to protect the rights and interests of the people involved.

Next, Federal Circuit Court Judge Alexandra Harland and academic Cressida Limon collaborate in analysing the human rights of the intended parents. These authors examine the ways in which parentage is recognised in Australian domestic law and its application to overseas commercial surrogacy arrangements. This involves a detailed analysis of Family Court surrogacy cases and exploration of options for federal reform to improve effective legal solutions for families and to reconcile the sometimes competing rights of children, surrogates and intended parents.

The final two chapters present international and comparative examples of the interaction between surrogacy and human rights. Dr Normann Witzleb and Anurag Chawla provide a human rights analysis of surrogacy regulation in India, often touted as a ‘global health destination’. To give a sense of context, they trace the early portrayals of surrogacy arrangements in Indian mythology. In recent years, modern medical infrastructure, low costs, permissive regulation and the ready availability of surrogates have meant that commercial surrogacy has become common in India, with around 2,000 children being born via surrogacy each year. While for surrogates the process may be a way to lift themselves and their families out of poverty, they often do not obtain independent advice or counselling and their interests may be surrendered to the control of clinics. Witzleb and Chawla provide a critical overview of Indian surrogacy regulation, including the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India 2005, court decisions and passport laws. They illustrate the uncertainty inherent in this framework in their discussion of the Baby Manji³ and Balaz Twins⁴cases. Some of these issues may be improved in the future with the introduction of proposed legislation, but compensated surrogacy will continue to form part of a wider debate on the appropriate relationship between private health services and public health in India.

Professor Richard Storrow provides an overview of surrogacy regulation in the United States. To the outside observer, the US appears unique amongst developed nations in the extent to which it has embraced commercial surrogacy, representing the pinnacle of laissez-faire regulation. The real picture, Storrow explains, is more complex. Like Australia, surrogacy in the US is regulated at the state level, and the range of prohibitive to permissive regimes across the country reflects a diversity of attitudes about the clinical, ethical and legal aspects of the debate. These range from criminalisation of surrogacy in Oklahoma to an adoption model in Florida, to prohibition of compensation in Kentucky and liberal legislation in California. While efforts to create uniform legislation have so far been unsuccessful, the overall trend is towards more rather than less regulation. Storrow also notes that there is no uniform treatment in legislation and case law of parentage entitlements in different types of surrogacy arrangements, meaning that cross-border issues can arise within the US when the parties are from different states. Storrow concludes that the outsider’s impression of the US as an unconstrained free market in commercial surrogacy is misplaced.

Weaving through the various contributions are themes of human dignity, choice and vulnerability, law and ethics, and the rights and responsibilities of individuals and governments. Intentionally, it is difficult, if not impossible, to draw firm conclusions from the chapters presented in this collection. In many ways, they raise more questions than they answer.

III. Other Pieces of the Jigsaw

In a collection of this size, it is not possible to include all aspects of the relationship between surrogacy and human rights, and there are several issues that have not been covered in detail.

For example, there is no in-depth analysis of the concept of so-called ‘reproductive tourism’ insofar as it relates to surrogacy and human rights, though Stuhmcke touches on how use of the term ‘tourism’ connotes a casual choice made from a position of power and based on an assumption of exploitation. The concept, referring to both interstate and international travel for the purpose of reproductive care, has been studied and interrogated extensively elsewhere.⁵ A number of commentators critique its legal pitfalls,⁶ or explicitly disavow the term ‘tourism’ as inapt to reflect the realities of travel undertaken by intended parents for reproductive purposes.⁷

This contestation of terms is symptomatic of a wider theme, which underlies all of the contributions but merits further emphasis here; that is, the unresolved use of labels, definitions and language in the context of surrogacy and surrogacy arrangements. Language has long been a topic of debate in the field,⁸ which is appropriate in light of the diversity of perspectives on surrogacy. While much of the controversy has centred on the terms ‘surrogate’, ‘mother’ and ‘parent’, the advent of surrogacy may be said to have contributed to a fundamental redefinition of motherhood, parentage and the family itself⁹ – for better or for worse, depending on the perspective adopted. As a further example, while it appears to be accepted in most of the jurisdictions canvassed that gestational surrogacy is preferable to traditional surrogacy, the question of how to characterise ‘payment for services rendered’ in terms of contracts or compensation is still vexed,¹⁰ prompting a spectrum of responses. These are not mere boundary disputes but go to the core of a human rights approach, at both an individual and state level.

Debate also exists around the use of the term ‘commercial’ to describe arrangements where a surrogate is compensated. The term ‘commercial’ suggests a crude business transaction that commodifies all those involved. It is perhaps more accurate, and less emotive, to refer to arrangements where there is payment over and above reasonable expenses, as ‘compensated’ surrogacy.

This book does not purport to provide a complete examination of all jurisdictions where surrogacy takes place, or even all the places that people frequently travel to for the purposes of surrogacy. While comprehensive data on surrogacy regulation around the world would be very difficult to compile,¹¹ especially given variations from state to state in federal jurisdictions such as Australia and the US, existing research shows that global trends in surrogacy regulation remain in flux.¹² Domestic regulatory models range from criminalisation to non-regulation, and from pre-approval for altruistic surrogacy to compensated surrogacy. Consistent with this ad hoc approach to surrogacy at the domestic level, there is no accord about how surrogacy should be regulated at the international level.¹³ The only certainty is that a human rights perspective is an indispensable component in both international and domestic discussions about the future of surrogacy regulation.

IV. Conclusion

Though not without historical precedents and context, the interaction of surrogacy with human rights is a truly contemporary issue. As revealed by the chapters in this collection, surrogacy presents particularly complex questions for human rights law. Alongside its technical and ethical facets, each surrogacy arrangement engages intimately with the human rights of a number of different participants, impacting the human right...

Índice

• Cover Page
• Title Page
• Copyright Page
• Contents
• Notes on Contributors
• 1 Surrogacy and Human Rights: Contemporary, Complex, Contested and Controversial
• 2 Surrogacy: A Personal Perspective
• 3 Theoretical Approaches to Human Dignity, Human Rights and Surrogacy
• 4 Through the Looking-Glass: A Proposal for National Reform of Australia’s Surrogacy Legislation
• 5 Extra-Territoriality and Surrogacy: The Problem of State and Territory Moral Sovereignty
• 6 Souls in the House of Tomorrow: The Rights of Children Born via Surrogacy
• 7 The Surrogate in Commercial Surrogacy: Legal and Ethical Considerations
• 8 Recognition of Parentage in Surrogacy Arrangements in Australia
• 9 Surrogacy in India: Strong Demand, Weak Laws
• 10 Surrogacy: American Style
• Index