Jpil v7n3 627

Journal of Private International Law
ISSN: 1744-1048 (Print) 1757-8418 (Online) Journal homepage: http://www.tandfonline.com/loi/rpil20
International Surrogacy Arrangements: An urgent

need for Legal Regulation at the International
Level
Katarina Trimmings & Paul Beaumont
To cite this article: Katarina Trimmings & Paul Beaumont (2011) International Surrogacy
Arrangements: An urgent need for Legal Regulation at the International Level, Journal of
Private International Law, 7:3, 627-647
To link to this article: http://dx.doi.org/10.5235/jpil.v7n3.627
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627 Journal of Private International Law Vol. 7 No. 3
International Surrogacy Arrangements
INTERNATIONAL SURROGACY ARRANGEMENTS:

AN URGENT NEED FOR LEGAL REGULATION AT THE
INTERNATIONAL LEVEL
KATARINA TRIMMINGS and PAUL BEAUMONT*

Downloaded by [Library Services City University London] at 05:43 03 April 2016
A. INTRODUCTION
The first part of this article gives a brief background on the issue of cross-
border surrogacy and legal problems associated with international surrogacy
arrangements. The second part outlines a potential legislative framework for
an international instrument that could regulate cross-border surrogacy arrange-
ments.
B. BACKGROUND TO THE TOPIC
Recent developments and research in the area of reproductive medicine have

resulted in various treatment options becoming available to infertile couples.
One of them is the use of a surrogate mother in cases where the female part-
ner of a couple is unable to carry a child. Surrogacy attained public visibility
over two decades ago, in the mid-1980s,1 through the notorious cases of Baby
Cotton2 in the United Kingdom and Baby M3 in the United States. Since then,
*
Katarina Trimmings is a postdoctoral Research Fellow at the University of Aberdeen, Scotland,
UK. Paul Beaumont is a Professor of European Union and Private International Law at the
University of Aberdeen, Scotland, UK.
1
Susan Markens, Surrogate Motherhood and the Politics of Reproduction (University of California Press,
2007), 9.
2
Re C (A Minor) (wardship: surrogacy) [1985] FLR 846 (Latey, J.). A surrogate mother in England
was artificially inseminated with the sperm of an American “intended father”, to carry a baby
for him and his infertile wife. The surrogate mother delivered the child without ever having
met the couple. The “intended parents” applied for custody of the child in the UK. Following
an investigation into the welfare of the child, the “intended parents” were awarded custody
and permitted to remove the child to the United States. The surrogate mother did not raise
any objections.
3
Matter of Baby M (1988, N J) 537 A2d 1227. The parties, Ms Whitehead as the surrogate
mother and Sterns as the “intended parents”, entered into a surrogacy agreement. Ms White-
head conceived by in vitro fertilisation and delivered a baby girl. The baby was thereupon taken
by the Sterns. The next day, however, Ms Whitehead said that she could not live without the
baby and removed her from the Sterns. The father obtained a court decision ordering enforce-
December 2011 International Surrogacy Arrangements 628
despite controversies over ethical aspects of surrogate motherhood,4 surro-

gacy has become an increasingly popular method of reproductive technology.5
Surrogacy targets the same clientele as its counterpart, adoption.6 It follows
that with an increasingly limited global market for adoption,7 surrogacy will
continue expanding.8 It is no exaggeration to say that the modern world has
already witnessed a development of an extensive international surrogacy mar-
ket.9 This market, although initially largely unnoticed, has recently attracted a
great deal of interest by the media.10
A surrogate mother can be defined as a woman who carries a child pursuant

to an arrangement made before she became pregnant, and made with the sole
intention of the resulting child being handed over to another person or other
ment of the contract and return of the child. Upon learning of it, Ms Whitehead fled with
the baby to Florida. There she was apprehended, the baby removed by force and returned to
the Sterns. Ms Whitehead was awarded visitation rights.
4
See eg M Freeman, “Is Surrogacy Exploitative?” in S McLean (ed), Legal Issues in Human Repro-
duction (Dartmouth Publishing, 1989), 164.
5
LA Brill, “When Will the Law Catch Up with Technology? Jaycee B v Superior Court of Orange
County: An Urgent Cry for Legislation on Gestational Surrogacy” (1999–2000) 39 Catholic Lawyer
241, 241.
6
I Lebowitz-Dori “Womb for Rent: The Future of International Trade in Surrogacy” (1997) 6
Minnesota Journal of Global Trade 329, 329.
7
International Social Service (ISS), “Evaluation of the Practical Operation of the Hague Conven-
tion of 29 May 1993 on Protection of Children and Co-operation in Respect of Inter-country
Adoption”, at 3 (hereinafter ‘ISS Report’). Also N Cantwell, UNICEF Innocenti Research
Centre, “Intercountry Adoption – A Comment on the Number of ‘Adoptable’ Children and
the Number of Persons Seeking to Adopt Internationally” (Spring 2003) V The Judges’ Newslet-
ter (published by the Hague Conference) 69, 72, http://hcch.e-vision.nl/upload/spring2003.pdf,
accessed 14 January 2011.
8
X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) at 26. Hedley J cautions that “as babies
become less available for adoption . . ., more and more couples are likely to be tempted to
follow the applicants’ path to commercial surrogacy in those places where it is lawful”.
9
Hague Conference on Private International Law, “Private International Law Issues Surrounding
the Status of Children, Including Issues Arising From International Surrogacy Arrangements”,
Prel Doc No 11 of March 2011 for the attention of the Council of April 2011 on General
Affairs and Policy of the Conference [11], www.hcch.net/upload/wop/genaff2011pd11e.pdf,
accessed 4 May 2011 (Surrogacy Prel Doc 2011). See also T Krim, “Beyond Baby M: Interna-
tional Perspectives on Gestational Surrogacy and the Demise of the Unitary Biological Mother”
(1996) 5 Annals of Health Law 193, 225 (noting that “the global surrogacy market is quickly
emerging”); and U Rengachary Smerdon, “Crossing Bodies, Crossing Borders: International
Surrogacy Between the United States and India” (2008–09) 39 Cumberland Law Review 15, 15
(acknowledging “an increasingly global expansion of surrogacy programs”).
10
For example, S Thakur, “Mother for Only Nine Months’, BBC News, 21 March 2008, http://
news.bbc.co.uk/1/hi/world/south_asia/7202043.stm, accessed 27 December 2010; S Nolen,
“Desperate Mothers Fuel India’s ‘Baby Factories’”, ScrippsNews, 13 February 2009, www.
scrippsnews.com/node/40947, 27 December 2010; R Mendick and S Bhatia, “Couple Buy
Child From India ‘Baby Factory’”, London Evening Standard, 6 May 2009, www.thisislondon.
co.uk/standard/article-23686256 details/Couple+buy+child+from+India+baby+factory’/arti-
cle.do, accessed 27 December 2010; and J McBrearty, “Sarah Jessica Parker: Surrogacy on
the Rise After Celeb Success”, Sky News, 11 December 2009, http://news.sky.com/skynews/
Home/UK-News/Sarah-Jessica-Parker-Surrogacy-On-The-Rise-In-Britain-After-Star-Used-A-
Surrogate-Mother/Article/200907215335484?f=rss, accessed 27 December 2010.
persons and the surrogate mother relinquishing all rights to the child. There
are two types of surrogacy: traditional surrogacy and gestational surrogacy. In
traditional surrogacy, the surrogate mother becomes pregnant with the sperm
of the intended father (usually by insemination, and seldom through sexual
intercourse) or is inseminated with a donor sperm. The surrogate mother is
genetically related to the child. In gestational surrogacy, an embryo is created
by in vitro fertilisation using the egg of the intended mother (or a donor egg)
and the sperm of the intended father (or a donor sperm). As a result, the sur-
rogate mother has no genetic relationship with the child. In the context of
gestational surrogacy, the surrogate mother is sometimes referred to as “a ges-
tational carrier, gestational surrogate or gestational host”.11
C. DUAL PATTERN: LEGAL REASONS AND ECONOMIC REASONS
Domestic legal responses to surrogacy differ widely between jurisdictions.12

Some countries decided to regulate surrogacy (eg the United Kingdom and
Israel), some to prohibit it (eg France and Germany) and some to ignore it (eg
Belgium and Finland).13 Jurisdictions that chose to regulate surrogacy further
differ on, for example, whether surrogate mothers should be allowed to receive
payments beyond necessary expenses (so-called “commercial surrogacy”) or
whether surrogacy agreements should be legally enforceable. The variety of
domestic responses to surrogacy has led to a widespread forum shopping where
infertile couples seeking to have a child through surrogacy travel from one
country to another, purposely choosing “surrogacy-friendly” jurisdictions as
their destinations.
Cross-border travel for the purpose of hiring a surrogate mother has been
termed as “procreative tourism”.14 By and large, the majority of “procreative
tourists” are childless Western couples attracted by “low-cost” surrogacy serv-
11
V Browne-Barbour, “Bartering for Babies: Are Preconception Agreements in the Best Interest
of Children?” (2004) 26 Whittier Law Review 429, 436.
12
Surrogacy Prel Doc 2011, supra n 9, [12]. Also X & Y (Foreign Surrogacy) [2008] EWHC 3030
(Fam) at 3. See also AG McEwen, “So You’re Having Another Woman’s Baby: Economics
and Exploitation in Gestational Surrogacy” (1999) 32 Vanderbilt Journal of Transnational Law 271,
278.
13
D Spar, The Baby Business How Money, Science, and Politics Drive the Commerce of Conception (Harvard
Business School Press, 2006), 71. See also R Rao, “Surrogacy Law in the United States: The
Outcome of Ambivalence” in R Cook, SD Sclater and F Kaganas (eds), Surrogate Motherhood:
International Perspectives (Hart Publishing, 2003).
14
R Deech, “Clones, Ethics and Infertility or Sex, Sheep and Statutes” (1998–99) 2 Quinnipiac
Health Law Journal 133, 133.
ices and a “ready availability of poor surrogates”15 in places such as India,

Eastern Europe and South America.16
It is usually the case that the law lags behind medical advances and corre-
sponding social developments. Unfortunately, international surrogacy is not an
exception. There is a complete void in the international regulation of surrogacy
arrangements, as none of the existing international instruments contains spe-
cific provisions designed to regulate this emerging area of international family
law.
In the absence of a global legislative response, highly complex legal prob-

lems arise from international surrogacy arrangements.17 Among these problems,
the most prevalent are the question of legal parenthood and the nationality of
the child.18 Courts and legislators in different countries have developed three
contrasting approaches to legal parenthood in surrogacy arrangements: the
birth test (gestational test), the genetics test, and the intent test. According to
the birth test, a woman who gives birth to a child is viewed as the legal mother
of the child, even if she is biologically unrelated to the child.19 According to
the genetics test, the child’s legal parents are determined on the basis of genet-
ics.20 It follows that, when applying the genetics test, a surrogate mother can be
regarded as the legal mother of the child only in cases of traditional surrogacy.
15
Yamada v Union of India, 2008 Ind Law SC 1554, 9 (29 September 2008) (known as “The Baby
Manji Case”).
16
K Farmer, “International Surrogacy Choices”, 29 June 2009, Ezine @rticles, http://ezinearti-
cles.com/?International-Surrogacy-Choices&id=2538590, accessed 14 January 2011. In the US,
for example, the total costs of a surrogacy arrangement range from $59,000 to $80,000. This
contrasts sharply with India where the costs of a surrogacy arrangement normally range from
$10,000 to $35,000. U Rengachary Smerdon, “Crossing Bodies, Crossing Borders: Interna-
tional Surrogacy Between the United States and India” (2008–09) 39 Cumberland Law Review 15,
32.
17
X & Y (Foreign Surrogacy) [2008] EWHC 3030 at 8. Hedley J warned that “many pitfalls con-
front the couple who consider commissioning foreign surrogacy”, and that “potentially difficult
conflict of law issues arise which may have wholly unintended and unforeseen consequences”.
See also L Theis, N Gamble and L Ghevaert, “Re X and Y (Foreign Surrogacy): ‘A Trek
Through a Thorn Forest’” (2009) 39 Family Law Journal 239.
18
Ibid. See also D Howe, “International Surrogacy – A Cautionary Tale” (2008) 38 Family Law
Journal 61; and D Cullen, “Surrogacy: ‘Commissioning’ Parents Not Domiciled in UK – Mat-
ters To Be Borne in Mind by Those Contemplating Surrogacy Arrangements” (2008) 32
Adoption & Fostering 1.
19
See eg, the Human Fertilisation and Embryology Act 2008, s 33(1). S 33(1) that sets rules for
the establishment of parenthood in cases of assisted reproduction states: “The woman who is
carrying or has carried a child as a result of the placing in her of an embryo or of sperm and
eggs, and no other woman, is to be treated as the mother of the child.”
20
This test was applied by the California Superior Court in the case of Johnson v Calvert, No X 63
31 90 (Cal Super Ct 1990). This case involved a gestational surrogacy agreement between the
Calverts (the intended parents) and Anna Johnston (the surrogate mother). An embryo created
from the Calverts’ genetic material was implanted into Ms Johnston’s uterus. When a dispute
between the parties arose as to who was the legal mother of the child, the Court, focusing on
genetics, concluded that the legal mother of the child was Ms Calvert. The Court held: “Anna
Johnston is the gestational carrier of the child, a host in a sense. . . . [She] and the child are
genetic hereditary strangers. . . . Anna’s relationship to the child is analogous to that of a
The genetics test raises difficult questions in surrogacy arrangements involving

anonymous egg/sperm donors. Finally, according to the intent test, the intent
of the parties as expressed in the surrogacy agreement controls the determina-
tion of the legal parenthood.21
As a classic practical example of problems that can arise from differing
national approaches, one can mention the English case of X & Y (Foreign
Surrogacy).22 In this case, a married British couple entered into a surrogacy agree-
ment with a married Ukrainian surrogate. The surrogate mother was implanted
with embryos created using donor eggs fertilised by the intended father’s sperm.
The surrogate mother gave birth to a set of twins. Under Ukrainian law, the
British couple were considered the legal parents of the children and were reg-
istered as such on the birth certificates. Under English law, however, the legal
parents of the twins were the surrogate mother and her husband.23 The con-
flict between English and Ukrainian law resulted in parental status being lost
for both couples. This left the children without legal parents and without rights
to either British or Ukrainian citizenship. As a result, the children were, in the
words of Mr Justice Hedley, “marooned, stateless and parentless, whilst the
couple could neither remain in the Ukraine nor bring the children to the UK”.
In the end, following a long delay due to DNA tests, the children were granted
discretionary leave to enter the UK “outside the rules” to make it possible for
the couple to apply for a parental order under section 30 of the Human Ferti-
lisation and Embryology Act 1990. The decision was based on the principle of
foster parent providing care, protection, and nurture during the period of time that the natural
mother, Crispina Calvert, was unable to care for the child.”
21
This test was applied by the California Court of Appeal in the case of In Re Marriage of
Buzzanca, 61 Cal App 4th 1410 (1998). In this case, the intended parents, Luanne and John
Buzzanca, decided to have an embryo genetically unrelated to either of them implanted in a
surrogate mother, who would carry and give birth to the child for them. After the pregnancy,
the intended parents split up, and the question arose as to who were the child’s legal parents.
The trial court concluded that the child had no legal parents. On appeal, this decision was
reversed and the Court of Appeal held that even though neither of the intended parents was
genetically related to the child, they were still her legal parents given their initiating role as the
intended parents in her conception and birth. It has been suggested that the rule of law for-
mulated by the Court of Appeal in In Re Marriage of Buzzanca would help avoid the situation
of a “parentless” child becoming the state’s responsibility. Also, the decision extended com-
prehensive legal protection to couples considering the use of donor eggs and sperms/donor
embryos. Finally, because of the ruling, it is no longer necessary in California for an intended
mother to pursue a stepparent adoption. Free Encyclopaedia, “In re Marriage of Buzzanca
– Significance”, http://law.jrank.org/pages/24481/In-re-Marriage-Buzzanca-Significance.html,
accessed 30 March 2011.
22
X & Y (Foreign Surrogacy) [2008] EWHC 3030. Hedley J took this case into open court precisely
in order to “illustrate the sort of difficulties that currently can and do appear”.
23
Under s 27 of the Human Fertilisation and Embryology Act 1990, the woman who carries the
child, regardless of genetics, is treated as the legal mother, even if the surrogacy takes place
outside of the UK. In addition, despite the fact that the intended father was biologically related
to the twins, because the surrogate mother was married, UK law presumed her husband to be
the twins’ father (ibid, s 28).
the welfare of the child.24 The court, however, noted that grant of a parental
order did not automatically confer nationality.
Other possible scenarios include cases where the intended parents would be
able to return to their state of residence with the child;25 however, the state of
the intended parents would refuse recognition of a judgment issued in the state
of the surrogate mother, granting the intended parents legal parentage; or the
state of the intended parents would refuse recognition of the birth certificate
issued in the state of the surrogate mother recognising the intended parents as
legal parents.26 In both cases, the refusal would be based on the grounds of
public policy.27
In addition to the difficulties concerning legal parentage and nationality,
a number of other legal hurdles can easily be envisaged. For example, what
happens in the case of multiple births? What happens if the child is born
with serious disabilities? At a later stage, other complications may arise, such
as a cross-border custody and access dispute between the “intended parents”
residing in one country and the surrogate mother in another, a dispute over
maintenance and financial support, or a dispute over international child abduc-
tion.28
Legal problems arising from the lack of international regulation of surro-
gacy arrangements are, however, not the only cause for concern in this respect.
Another great worry springing from the unregulated character of “procreative
tourism” is the potential for a “black market” preying on peoples’ emotional or
24
The principle that the court must make the child’s welfare its paramount consideration was
further reaffirmed in Re L (a minor) [2010] EWHC 3146 (Fam). In this case, the High Court
awarded parenthood to a British couple who had conceived through a surrogacy arrangement
in Illinois, USA.
25
In the majority of these cases, the child would have acquired the nationality of the state of the
surrogate mother by dint of birth, and would have been able to leave the country on a pass-
port issued to him/her by this state. Surrogacy Prel Doc 2011, supra n 9, n 39.
26
Surrogacy Prel Doc 2011, ibid, [13].
27
Ibid.
28
The problem of child abduction in the context of an international surrogacy arrangement
surfaced in the case of W and B v H (Child Abduction: Surrogacy) [2002] 1 FLR 1008. This case
involved a surrogacy agreement made in California between a Californian couple and an Eng-
lish surrogate. It was agreed that during the pregnancy the surrogate mother would stay in
England and only return to California for the birth. A dispute, however, arose between the
parties after it was discovered that the surrogate mother was carrying twins. The surrogate
decided to give birth to the children in England. The couple sought an order under the inher-
ent jurisdiction of the High Court for the summary return of the children to California under
the 1980 Hague Convention on Civil Aspects of International Child Abduction. The central
issue was whether, at the time immediately before the retention, the twins were habitually resi-
dent in California or in England. It is a prerequisite for the operation of the Convention that
the child concerned has a habitual residence. In the instant case, however, the Court held that
the children were neither habitually resident in California nor habitually resident in England.
It was concluded that infants born through surrogacy have no habitual residence for the pur-
poses of the Hague Abduction Convention. As a result, the Convention was found inapplicable
to cases of international surrogacy.
economic needs.29 This concern is particularly legitimate in cases of surrogacy

for profit, where the commercial nature of these arrangements renders them
often akin to child trafficking or trafficking in women.30
D. A CONVENTION ON SURROGACY
It has been widely recognised that there is an urgent need for a multilateral,
legally binding instrument that would establish a global, coherent and ethical
practice of international surrogacy.31 In 2010, the problem of international
surrogacy arrangements was identified as an emerging international family law
issue that required further study and discussion by the Special Commission on
the practical operation of the Hague Convention of 29 May 1993 on Protection
of Children and Co-operation in Respect of Intercountry Adoption. The Com-
mission noted that the number of international surrogacy arrangements was
rising rapidly, and voiced concern “over the uncertainty surrounding the status
of many of the children who are born as a result of these arrangements”.32
The Commission also noted that the use of the Adoption Convention in cases
of international surrogacy was inappropriate.33
The issue was also raised at the Hague Conference General Affairs Meet-
ing in April 2010 (by Israel)34 as well as at the International Family Justice
Judicial Conference for Common Law and Commonwealth Jurisdictions in
29
Krim, supra n 9, 195. See also Hedley J in X & Y (Foreign Surrogacy) [2008] EWHC 3030 at 29:
“[T]he present law might encourage the less scrupulous to take advantage of the more vulner-
able, unmarried surrogate mothers and to be less than frank in the arrangements that surround
foreign surrogacy.”
30
J Chernick, “Memorandum: Is there a Need to Regulate Intercountry Surrogate-Pregnancy
Agreements in Private International Law?” (on file with the authors).
31
For example, Krim, supra n 9; Lebowitz-Dori, supra n 6; S Fiandaca, “In Vitro Fertilization and
Embryos: The Need for International Guidelines” (1997–98) 8 Albany Law Journal of Science and
Technology 337; W Davis and J Dalessio, “Reproductive Surrogacy at the Millennium: Proposed
Model Legislation Regulating ‘Non-Traditional’ Gestational Surrogacy Contracts” (1999–2000)
31 McGeorge Law Review 673; Spar, supra n 13; and RL Lee, “New Trends in Global Outsourc-
ing of Commercial Surrogacy: A Call for Regulation” (2009) 20 Hastings Women’s Law Journal
275. See also X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) at 29.
32
Hague Conference on Private International Law, “Conclusions and Recommendations Adopted
by the Special Commission on the Practical Operation of the Hague Convention of 29 May
1993 on Protection of Children and Co-operation of Intercountry Adoption”, [25], www.hcch.
net/upload/wop/adop2010concl_e.pdf, accessed 23 March 2011 (hereinafter “Conclusions and
Recommendations of the 2010 Special Commission”). The Special Commission also recom-
mended that the Hague Conference carry out further study of the legal, especially private
international law, issues surrounding international surrogacy. Ibid, [26].
33
Ibid.
34
Hague Conference on Private International Law, “Council on General Affairs: Conclusions
and Recommendations”, 7–9 April 2010, www.hcch.net/upload/wop/genaff2010concl_e.pdf,
accessed 1 June 2011. The Council agreed to keep the issue “under review”.
Cumberland Lodge, England in August 2009.35 Even more importantly, the

problem of cross-border surrogacy arrangements has been discussed in depth
at the Hague Conference Council on General Affairs and Policy meeting in
April 2011.36 It was proposed at the meeting that, if there was sufficient inter-
est among Member States of the Hague Conference, the Conference should
engage in further work in the area of international surrogacy. In particular, it
was suggested that the Permanent Bureau “intensifies its work on the private
international law aspects of the establishment and contestation of legal par-
entage, in particular on the broader range of private international law issues

arising from international surrogacy arrangements”.37 The Permanent Bureau
proposed that it continue to gather information on “the practical needs in the
area, comparative developments in domestic and private international law, and
the prospects of achieving consensus on a global approach”.38 It also proposed
to carry out consultations with legal, health and other relevant professionals.39
The authors hope that the research project on international surrogacy arrange-
ments that is being carried out at the University of Aberdeen in co-operation
with the Hague Conference will make a substantial contribution to the work of
the Hague Conference in the area. The Hague Conference Council on Gen-
eral Affairs and Policy in April 2011 reached the following conclusions:
“Private international law issues surrounding the status of children,
including issues arising from international surrogacy arrangements
17. The Council welcomed the Report prepared by the Permanent Bureau on the
above subject.
18. The Council invited the Permanent Bureau to intensify its work in the area
with emphasis on the broad range of issues arising from international surrogacy
arrangements. The Permanent Bureau should during the next year continue gath-
ering information on the practical needs in the area, comparative developments in
domestic and private international law, and the prospects of achieving consensus on
a global approach.
19. The Permanent Bureau should also consult with the legal profession as well as
with health and other relevant professionals concerning the nature and incidence of
the problems occurring in this area.
35
See “Conclusions and Resolutions from the Cumberland Lodge Conference”, 4, www.hcch.net/
upload/resolutions_famlawconf09.pdf, accessed 23 March 2011. The Conference was attended
by 42 judges from 23 jurisdictions.
36
Surrogacy Prel Doc 2011, supra n 9.
37
Ibid, [54].
38
Ibid.
39
Ibid.
20. The Permanent Bureau should provide a preliminary report on progress to the
Council in 2012.”40
1. Legislative Approach
Given the extremely wide variety of domestic responses to surrogacy, a Con-
vention on surrogacy should not aim at the unification of the conflict rules.
The way ahead in the general area of jurisdiction, applicable law and rec-
ognition should involve a flexible approach, an effort to recognise and make
compatible the varying national systems that apply to surrogacy. Rather than
focusing on traditional rules on jurisdiction and applicable law, the Convention
should establish a framework for international co-operation with emphasis on
the need for substantive safeguards and on procedures for courts, administra-
tive authorities and private intermediaries. There should be an agreed division
of functions between the countries involved and the countries dealing with the
different functions will apply their own laws to those functions. Finally, a gen-
erous approach should be taken with respect to the recognition of cross-border
surrogacy arrangements and their effects within the framework of cooperation
established by the Convention, subject to a public policy exception.
Within this multilateral framework, detailed regulation should be left to
bilateral agreements between Member States. The Convention would give
Member States maximum flexibility to agree on details of international surro-
gacy arrangements, including issues such as suitability of “intended parents”,
suitability of a surrogate mother, and payments in surrogacy arrangements.
The Convention would only set minimum standards and would not prevent
state parties from setting higher standards for international surrogacy arrange-
ments.41
40
Hague Conference on Private International Law, “Council on General Affairs and Policy of
the Conference (5–7 April 2011): Conclusions and Recommendations Adopted by the Coun-
cil” www.hcch.net/upload/wop/genaff_concl2011e.pdf, accessed 31 May 2011.
41
The same approach is taken by the Adoption Convention. The Adoption Convention sets out
only minimum standards that must be observed within the intercountry adoption process and
Contracting States are encouraged to establish higher standards. Permanent Bureau of the
Hague Conference on Private International Law, “Report and Conclusions of the Second Spe-
cial Commission on the Practical Operation of the Hague Convention of 29 May 1993 on
Protection of Children and Co-operation in Respect of Intercountry Adoption (17–23 Sep-
tember 2005)”, [42], www.hcch.net/upload/wop/adop2005_rpt-e.pdf, accessed 25 March 2011
(hereinafter “Report and Conclusions of the Second Special Commission”). See also G Parra-
Aranguren, “Explanatory Report on the Convention on Protection of Children and Co-operation
of Intercountry Adoption”, eg [108], [109], [113], [126], [175], [254], [259], [373], [383],
[386] and [388], www.hcch.net/index_en.php?act=publications.details&pid=2279&dtid=3,
accessed 25 March 2011 (hereinafter “Explanatory Report”).
2. Objectives of the Convention

Applying a functional approach based on the division of responsibilities – as set
out above – the primary goals of the Convention should be: (1) to develop a
system of legally binding standards that should be observed in connection with
international surrogacy arrangements; (2) to develop a system of supervision to
ensure that these standards are observed; and (3) to establish a framework of
co-operation and channels of communication between jurisdictions involved.
3. Effects of the Convention

The establishment of a framework of co-operation amongst Contracting States
will achieve a triple effect. First, it will promote the exchange of informa-
tion and the transmission of documents between the countries concerned, with
the aim of facilitating practical solutions. Second, it will reduce “limping” or
unrecognised surrogacy arrangements. Third, it will help to combat trafficking
in women and children, and other comparable abuses such as the abduction
and the sale of women and children.42 It is, however, to be noted that, like the
Adoption Convention, the surrogacy Convention would not aspire to combat
these abuses directly. The Convention would tackle the abuses only indirectly,
as “it is expected that the observance of the Convention’s rules will bring about
the avoidance of such abuses”.43
4. Template
It is suggested that the co-operative framework on cross-border surrogacy be
based on the template of the highly successful 1993 Hague Convention on
Protection of Children and Co-operation in Respect of Intercountry Adoption
(“the Adoption Convention”).44 The Adoption Convention appears to be the
most suitable model for a number of reasons:
First, having attracted 83 Contracting States45 from around the globe, the
Adoption Convention has been one of the most effective instruments in the
42
See Hague Conference on Private International Law, “Conclusions of the Special Commission
of June 1990 on Intercountry Adoption”, Prel Doc No 3 of August 1990, Actes et Documents de
la Dix-Septième Session 10–29 May 1993, [12].
43
“Explanatory Report”, supra n 41, [52].
44
The Hague Convention on Protection of Children and Co-operation in Respect of Inter-
country Adoption, 29 May 1993. It has rightly been pointed out that the Hague Adoption
Convention itself is not an appropriate instrument to resolve problems arising from inter-
national surrogacy arrangements as some of the key requirements of the Convention cannot
be met in international surrogacy cases. See Surrogacy Prel Doc 2011, supra n 9, [43].
45
Hague Conference of Private International Law, “Convention of 29 May 1993 on Protection
of Children and Co-operation in Respect of Intercountry Adoption: Status Table”, www.hcch.
net/index_en.php?act=conventions.status&cid=69, accessed 23 March 2011 (hereinafter “Status
Table”).
area of international protection of children.46 This success is particularly due

to the fact that from the formal introduction of the subject at the Hague Con-
ference in 1988,47 the work on the Convention attracted equally countries of
origin and receiving countries.48 Indeed, the Contracting States to the Adoption
Convention include such important countries of origin as India49 and China,50
and almost all of South America (including those South American countries
that are not Member States of the Hague Conference).51 It has rightly been
pointed out that the wide spectrum of participating countries “is a convincing
indication that the Convention has managed to strike the right balance between
the concerns of the States of origin and the receiving States – a prerequisite
for the confidence needed for its successful operation”.52 Accordingly, in order
to produce a document that will effectively tackle the problem of cross-border
surrogacy, it is imperative to ensure that both the “supply countries” and the
“demand countries” are actively involved.
Second, it is important to note that like surrogacy today, in the 1980s, inter-
national adoption was a morally sensitive issue. The Adoption Convention,
having been drafted in a very flexible and morally neutral way, has dealt with
these objections very successfully. It is envisaged that the Convention on sur-
rogacy would adopt a similar approach.
Third, the Adoption Convention provides a valuable set of safeguards for
children, birth parents and prospective adoptive parents in adoptions carried
out under the Convention. In addition, it is hoped that the Convention will
make an impact beyond the scope of Convention adoptions, so that children
involved in non-Convention adoptions would also be able to benefit from the
Convention safety mechanism. In order to attain this objective, Contracting
States are strongly recommended to apply “the standards and safeguards of the
Convention to the arrangements for intercountry adoption which they make
in respect of non-Contracting States”.53 In a similar way, it is hoped that the
46
“Report and Conclusions of the Second Special Commission”, supra n 41, [8].
47
On 19 January 1988, the Permanent Bureau of the Hague Conference submitted the subject
of international co-operation in the area of intercountry adoption to the Special Commission
on general affairs and policy of the Conference. See “Explanatory Report”, supra n 41, [1].
48
It is to be noted that the Contracting States currently include the US and many other receiv-
ing countries as well as a large number of sending countries. See “Status Table”, supra n 45.
49
India ratified the Convention on 6 June 2003. The Convention entered into force for India on
1 October 2003. See “Status Table”, supra n 45.
50
China ratified the Convention on 16 September 2005 and it has been in force for China since
1 January 2006. See “Status Table”, supra n 45.
51
In particular, Brazil, Chile, Costa Rica, Ecuador, Panama, Paraguay, Peru, Uruguay and Ven-
ezuela (Member States of the Hague Conference); and Belize, Bolivia, Colombia, El Salvador,
Guatemala (Non-Member States of the Hague Conference). See “Status Table”, supra n 45.
52
53
Hague Conference on Private International Law, “Report and Conclusions of the Special
Commission on the Practical Operation of the Hague Convention of 29 May 1993 on Pro-
tection of Children and Co-operation in Respect of Inter-country Adoption, 28 November–1
December 2000”, [56], www.hcch.net/upload/scrpt33e2000.pdf, accessed 31 March 2011. This
standards set by the Convention on surrogacy will encourage good practice also
in non-Convention cases. This is particularly important given the fact that, at
the onset, the ethical controversy over surrogacy might make some countries
reluctant to formally participate.
Last but not least, adoption and surrogacy have a number of features in
common. As institutions of family law54 adoption and surrogacy can be viewed
as “two possibilities on a menu of choices to pursue in [infertile couples’] quest
for children”.55 It has been suggested that cases of traditional surrogacy (ie
where the surrogate mother is also the biological mother of the child) are
ordinary adoption cases, as due to the very strong bond the surrogate mother
has the right to regard the child as her own.56 This approach was taken in
the famous US case In re Baby M.57 This case involved a traditional surro-
gacy agreement where, following the birth of the child, the surrogate mother
changed her mind and decided to keep the baby. The court, having considered
the case against the background of adoption law, refused to enforce the sur-
rogacy agreement between the surrogate mother and the intended father, who
was also the biological father of the child.
Despite the above commonalities, it may be argued that there is a fun-
damental difference between adoption and surrogacy; in particular, that the
former institution is a more or less altruistic act that serves primarily the needs
of a child in need of a family, whereas the latter represents a means of meeting
the private needs of a childless couple. Unfortunately, however, this distinc-
tion has become increasingly blurred in the past few decades. Nowadays, it is
no longer true that the sole objective of adoption is to find nurturing families
for orphaned or abandoned children. If the claim about the exclusively child-
centred focus of adoption reflected the reality, there would not be so many
adoptable children with special needs (ie older children, handicapped children,
or children in sibling groups) waiting for a family.58 Very often adoption, like
surrogacy, serves primarily the needs of childless adults.59
recommendation was reaffirmed by the 2010 Special Commission. See “Conclusions and Rec-
ommendations of the 2010 Special Commission”, supra n 32, [36].
54
An alternative view is that surrogacy (or more generally assisted reproduction) is an aspect of
reproductive autonomy, and should be treated as a matter of contract law. S Appleton, “Adop-
tion in the Age of Reproductive Technology” [2004] University of Chicago Legal Forum 393, 393.
55
Ibid, 394.
56
A Struycken, “Surrogacy, A New Way to Become a Mother? A New PIL Issue” in K Boele-
Woelki et al (eds), Convergence and Divergence in Private International Law (Eleven International
Publishing, 2010), 357.
57
(1988, N J) 537 A2d 1227. For more details on the case see supra n 3.
58
The problem of large numbers of “children with special needs” who are waiting for families
has been acknowledged on a number of occasions. See eg ‘ISS Report’ at 7–9; and “Report
and Conclusions of the Second Special Commission”, supra n 41, [116]–[119].
59
See Appleton, supra n 54, 403, who suggests that adoption, that traditionally represented a
“public face” of family law, has nowadays acquired a “private face” (a means of meeting pri-
vate needs of childless adults).
5. Scope of the Convention

The Convention should be applicable to all cases where intended parent(s) and
surrogate mother are habitually resident in different Contracting States, regard-
less of whether the arrangement is commissioned in the surrogate mother’s
country, in the intended parents’ country or in a third country. To apply the
terminology of the Adoption Convention, the country of habitual residence of
the surrogate mother is the “country of origin” (of the child), and the country
of habitual residence of the intended parent(s) is the “receiving country” (of

the child). Habitual residence should be chosen over nationality or residence.
This is firstly to ensure that authorities of the receiving state and the state of
origin, respectively, have sufficient information to assess accurately the suitabil-
ity of the prospective parents and the surrogate mother. No less importantly,
the preference for habitual residence points to the importance of some form of
permanency in the surrogate mother’s residence in the jurisdiction. This is to
prevent cases where a woman is brought to a “surrogacy-friendly” jurisdiction
solely for the purpose of serving as a surrogate mother there.60 There is an
inherent danger of human rights abuses in such a practice as the move might
be involuntary and thus clearly amount to trafficking in women.
Nevertheless, it is recognised that, given the varying interpretations of the
concept of habitual residence,61 a stable connection between the surrogate
60
In 1995, Dutch police uncovered a criminal gang responsible for luring young Polish women
to act as surrogate mothers for infertile couples in the Netherlands, Belgium and Germany.
The women were recruited through advertisements in Polish newspapers which promised “dis-
cretion” and “good fees” in return for their services as surrogate mothers. In the course of
the investigation, the identity of a number of couples involved was established, although it
was unlikely that the babies would be taken away from them. The criminals faced custo-
dial sentences for organising surrogate motherhood for commercial gain and/or for trafficking
in women. A Daruvala, “Poles Hired as Surrogate Mums in Illegal Trade”, The Independent
4 June 1995, www.independent.co.uk/news/world/poles-hired-as-surrogate-mums-in-illegal-
trade-1584960.html, accessed 29 March 2011.
61
Where there is clear evidence of an intention to commence a new life in another state, then
the existing habitual residence will be lost and a new one acquired. Courts have accepted that
acquisition of a new habitual residence may occur within a short period of time (eg Re J (A
Minor) (Abduction: Custody Rights) [1990] 2 AC 562; Re F (A Minor) (Child Abduction) [1992] 1
FLR 548; and DeHaan v Gracia [2004] AJ No 94 (QL), [2004] ABQD 4) or even immediately
(eg Bundesgericht II Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 15
novembre 2005, 5P367/2005/ast – Switzerland). Nevertheless, recent judicial developments in
Europe indicate that “some degree of integration”, determined among other factors by the
duration of a person’s stay on the territory of an EU Member State, should be required before
habitual residence can be established. Case C-523/07, A [2009] ECR I-2805 (Third Chamber).
In this case, the European Court of Justice (ECJ) concluded that “habitual residence” corre-
sponded to the place which reflected some degree of integration by the child in a social and
family environment. In particular, the following facts should be taken into consideration: the
duration, regularity, conditions and reasons for the stay on the territory of a Member State and
the family’s move to that state, the child’s nationality, the place and conditions of attendance at
school, linguistic knowledge, and the family and social relationships of the child in that state.
Ibid. Even more recently, in the case of Mercredi, the ECJ concluded that in ascertaining the
habitual residence of a very young child the focus should be on the place of the centre of inter-
mother/the intended parents and the country in question will not be automat-
ically guaranteed, if habitual residence is used as an unconstrained connecting
factor. It is therefore suggested that the Convention specifies a minimum period
of residence that would be required in order for the habitual residence to be
enough for the Convention to apply. This period will be a matter for the nego-
tiators of the Convention but it could be one or two years, and it is envisaged
that this additional requirement would apply only to cases involving non-na-
tionals of the relevant country.
A similar approach is taken by the Convention of 1 August 1989 on the Law

Applicable to Succession to the Estates of Deceased Persons (“the 1989 Hague
Succession Convention”). According to Article 3(1) of the Succession Conven-
tion, “succession is governed by the law of the State in which the deceased at
the time of his death was habitually resident, if he was then a national of that
State”. If the deceased was not a national of the given state, the law of this
state governs succession only if the deceased “had been resident there for a
period of no less than five years immediately preceding his death”.62
6. Fundamental Principles
The Convention should be based on two fundamental principles: the principle
of the best interests of the child and the principle of biological connection.
(a) Best Interests of the Child

The Convention should ensure that the best interests of the (putative) child shall
be the paramount consideration in intercountry surrogacy arrangements.63 This
requirement is in accordance with Article 3(1) of the UN Convention on the
Rights of the Child (UNCRC) which requires that the child’s best interests be
a primary consideration in all actions concerning children.64 Pursuant to Article
3(2) of the UNCRC, account must also be taken of the rights and duties of
other persons concerned, in this case the surrogate mother and the intended
parents. As their interests are also entitled to legal protection, a balance must
be achieved among the interests of all parties to a surrogacy arrangement.65
ests of the child ascertained by the habitual residence of the custodial parent. Case C-497/10
PPU Mercredi v Chaffe, judgment of 22 December 2010, esp paras 51–56 (First Chamber).
62
Art 3(2) of the 1989 Hague Succession Convention.
63
This requirement reflects the over-arching principle of intercountry adoption. In particular,
Art 1 of the Adoption Convention requires that intercountry adoptions “take place in the
best interests of the child and with respect for his or her fundamental rights”. Similarly, the
Preamble to the Convention highlights the importance of intercountry adoptions being carried
out “in the best interests of the child and with respect for his or her fundamental rights”.
64
United Nations Convention on the Rights of the Child, adopted by General Assembly reso-
lution 44/25 of 20 November 1989. Available at www.ohchr.org (hereinafter “UNCRC”), Art
3(1).
65
“Explanatory Report”, supra n 41, [49].
Practical measures that would support the best interests principle would
include: (1) ensuring the intended parents are suitable; and (2) preserving infor-
mation about the identity of the surrogate mother (and an egg/sperm donor
if involved).66
(b) Biological Connection

Not only should surrogacy be seen as the last resort, but it should be restricted
to instances where at least one of the intended parents is biologically related

to the child. It has rightly been pointed out that there is no need to create
more children as there are millions of children around the world who are in
need of adoption, waiting for a loving home. The Convention must ensure that
cross-border surrogacy is not perceived as a possible “shortcut” to obtaining a
biologically non-related child from abroad. It must give a clear message that
the proper route to obtaining a genetically non-related child is through adop-
tion. The requirement of a biological connection between the child and at
least one of the intended parents will reaffirm the relevance of the Adoption
Convention and ensure that the value of that Convention is not undermined.
7. Framework of Co-operation
The Convention would require each Contracting State to constitute a Central
Authority (CA), charged with co-operation with its counterparts and with the
supervision of private agencies operating within its jurisdiction. To save costs
associated with the implementation of the Convention, states that are parties
to the Adoption Convention could give the CAs for intercountry adoption also
the duties under the Surrogacy Convention.
Like the Adoption Convention, the Convention on surrogacy could allow
for a delegation of the functions of the CA to other public bodies67 or to
officially approved (ie accredited) private agencies68 (eg fertility clinics or sur-
rogacy brokers).69 The process of accreditation would serve as one of the key
safeguards in intercountry surrogacy cases. The Convention might offer sug-
gestions as to the requirements for such approval (eg that the organisation is
based in the given country, that the organisation pursues non-profit objectives,
that its staff members are properly trained, etc). Matters such as the number
66
In the context of intercountry adoption, practical measures to reinforce the best interests prin-
ciple include: (1) ensuring the adoptability of the child (Art 4(a)); (2) storing information on the
child and his/her biological family (Art 30); and (3) matching the child with suitable adoptive
parents (Art 16(d)). See “Report and Conclusions of the Second Special Commission”, supra n
41, [29].
67
See Arts 8 and 22 of the Adoption Convention.
68
See Arts 9 and 22 of the Adoption Convention.
69
Certain functions would not be delegable and will have to be performed exclusively by CAs.
Non-delegable functions in the context of intercountry adoptions are set out in Art 7(2) of the
Adoption Convention.
of accredited bodies; the extent of an accredited body’s functions; accredita-

tion procedure; criteria for accreditation and its renewal; and the supervision of
accredited bodies would be left to the policymakers of individual Contracting
States.70 Nevertheless, it is preferable that accredited bodies be accountable to
the CA or other government authority.
Within the framework of co-operation based on the division of responsi-
bilities between countries of origin and receiving countries, the law of the
intended parents’ country of habitual residence will govern the conditions relat-
ing to the suitability of the intended parents and the consequential effects of
the surrogacy arrangements. The law of the country of the surrogate mother
will govern all matters relating to the surrogate mother.
The primary responsibilities of the authorities in the country of origin
should include:
1. Establishing conditions under which its residents may serve as surrogate
mothers (the Convention might provide some guidance, eg the age, marital
status, requirement of a prior live birth, adequate preparation, etc).71
2. Ensuring that persons required to give consent to the surrogacy arrange-
ment (ie the surrogate mothers) have been fully informed about the legal
aspects of the surrogacy arrangement and consequences of their decision;
3. Ensuring that the surrogate mother is adequately reimbursed, ie that she
has been paid at least a year’s living expenses.
4. Authorising the child’s departure from that state in accordance with an
adoption or other order.
Correspondingly, authorities in the receiving country would be responsible
for:
1. Establishing the conditions regarding the parental fitness of the intended
parents (this should be equivalent to requirements on adoptive parents under
the law of the country, ie the intended parents must meet the standards
of fitness applicable to adoptive parents). The Convention might provide
some guidance, eg age limit, the existence of valid marriage, a stable family
environment, adequate preparation). As a minimum, married couples would
be allowed to use the Convention; nevertheless, Contracting States would
be able to extend the application of the Convention to other categories of
intended parents on a bilateral basis.72
70
71
As a useful template, relevant provisions of the Virginia statutory law could be used. Accord-
ing to this statute a surrogate mother must be married, must have had at least one live birth,
and giving birth to another child will not pose an unreasonable risk to her physical or mental
health or the health of the child produced through the surrogacy arrangement. Va Code Ann,
paras 20–160(B)6 (2004).
72
It is a matter of public policy of individual states to decide whether registered partners
(heterosexual or homosexual), unregistered partners (heterosexual or homosexual), single women
or single men have the same rights as a married couple.
2. Informing intended parents about the legal aspects and consequences of

the surrogacy arrangement.73
3. Preparing a file on the intended parents (containing information about their
identity and background, family and medical history, motivation of surro-
gacy, relevant social considerations, etc).
4. Authorising and facilitating the child’s entry into the receiving country.
5. Where required, supervising and protecting the child and making arrange-
ments for the intended parents to have parental responsibility for the
child.
In addition to a well-organised co-operative framework between differ-
ent Contracting States, effective intra-state co-operation will also need to be
guaranteed.74 Effective co-operation between relevant authorities within each
Contracting State will contribute substantially to the successful achievement of
the Convention’s objectives, in particular the objective of combating potential
abuses of women and children through avoidance of the Convention.75 (See
above: Objectives of the Convention.)
8. Illicit Activities
Cross-border surrogacy arrangements should be channelled exclusively through
state-licensed agencies both in the country of origin and in the receiving coun-
try. Recognition of cross-border surrogacy agreements commissioned either
privately or through unauthorised intermediaries should be strictly opposed
(outlawed).76 This will send a clear message to potential intended parents and
encourage surrogacy arrangements only through authorised agencies.
9. Other Matters that Require Further Examination

(a) Compensation in Surrogacy
The surrogate mother should be compensated, at the minimum, for her lost
wages (or reasonable living expenses, if not employed prior to the pregnancy)
73
This process of “counselling” would be comparable to adoption preparation in the context of
intercountry adoption. The need for proper preparation of the prospective adoptive parents
was highlighted at the Second Special Commission to review the operation of the Adoption
Convention. See “Report and Conclusions of the Second Special Commission”, supra n 41,
[90].
74
Ibid, [42].
75
Ibid, [33].
76
A similar approach is adopted by the Adoption Convention. In line with this approach, “pri-
vate” or “direct” adoptions (ie adoptions arranged directly between birth parents and adoptive
parents, and “independent” adoptions (ie adoptions where adoptive parents are approved to
adopt in the receiving state and, in the state of origin, locate a child without the involvement
of a CA or accredited body in the state of origin) are considered as being incompatible with
the Convention. See Art 29 of the Adoption Convention and “Conclusions and Recommenda-
tions of the 2010 Special Commission”, supra n 32, [22], [23].
and medical and other pregnancy-related expenses.77 The reasonable living

expenses could be calculated through a reimbursement entitlement formula set
by the Convention, for example three times the minimum salary in the sur-
rogate mother’s country of habitual residence. It appears reasonable that the
surrogate mother be compensated for at least 12 months’ worth of lost wages/
living expenses (9 months pregnancy plus 3 months post-birth recovery).78
(b) Payments Beyond Reasonable Expenses

It is important to ensure that a surrogacy contract does not turn into a con-
tract for the sale of the child. Therefore, payments beyond reasonable expenses
could only be justified as a “reimbursement for pain and suffering”.79 The
Convention would in no case impose on the states an obligation to permit
surrogacy arrangements involving payments beyond reasonable expenses. Nev-
ertheless, states could be allowed to legalise these on a bilateral basis, under
the condition that a remuneration maximum specified by the Convention is not
exceeded in each individual case. Surrogacy agreements in which an amount
paid to the surrogate mother would exceed the maximum set by the Conven-
tion would be classified as constituting child trafficking.
(c) Lawyers’ and Intermediaries’ Fees

In order to prevent improper financial gain from surrogacy arrangements by
fertility clinics and other intermediaries (eg surrogacy agencies and law firms),
transparency in costs and fees is necessary. It is suggested that the Convention
sets some limits on possible fees and costs but it is recognised that this cannot
be expressed in absolute figures due to widespread variations in incomes and
costs in possible Contracting States. The details of financial accountability of
accredited bodies should be left to domestic regulation.
(d) Actual Enforcement of Surrogacy Arrangements

Enforcement of surrogacy arrangements, as opposed to the enforceability of for-
eign orders relating to surrogacy, should be a matter of national law; although
some minimum rules on actual enforcement should be set in the Convention.
The same approach was adopted by the drafters of the Hague Convention
77
As a useful model, relevant provisions of the US Uniform Adoption Act could be used. The
Act sets forth the following permissible categories for which payments may be made: payments
for all related medical, hospital and pharmaceutical costs; travelling expenses; legal fees; coun-
selling fees for a reasonable time before and after the birth; and also for birth mother’s living
expenses for up to six weeks after the birth. The Act further provides that the adoptive parents
are not liable for payments if the adoption does not occur.
78
However, in order to avoid over-compensation, account will have to be taken of the surrogate
mother’s entitlement to a maternity pay/allowance under the law of the state of her habitual
residence.
79
See the trial court’s opinion in the case of Johnson v Calvert 19 Cal Rprt 2d 494.
of 23 November 2007 on the International Recovery of Child Support and

Other Forms of Family Maintenance (“the 2007 Hague Maintenance Conven-
tion”). Article 32(1) of the Maintenance Convention states that “enforcement
shall take place in accordance with the law of the State addressed”, subject to
the relevant provisions of the Convention. These provisions include, for exam-
ple, Article 32(2) that imposes the requirement of prompt enforcement; Article
33 that embodies the principle of non-discrimination;80 and Article 34 that
contains the obligation to make available in internal law “effective measures
to enforce decisions under this Convention” and gives an illustrative list of

enforcement measures.81
(e) Recognition and Effects of Surrogacy Arrangements

A legal parent–child status acquired between the intended parents and the
child in the state of origin should be automatically recognised in the receiving
state. This could be achieved through the adaptation of Article 26 of the
Adoption Convention which specifies that the recognition of the adoption
includes recognition of “the legal parent–child relationship between the child
and his/her adoptive parents”.82 From the procedural perspective, recognition
could be achieved, as in adoption, through the use of a “certificate of conform-
ity” like the one introduced by Article 23 of the Adoption Convention. Article
23 states: “[A]n adoption certified by the competent authority of the State of
adoption as having been made in accordance with the Convention shall be rec-
ognised by operation of law in other Contracting States.” The certificate of
conformity serves as “evidence of a prima facie conformity of the adoption with
the Convention’s system”83 and for practical purposes, as “a passport” which
suffices as “evidence of the child’s status”.84 It gives instant “certainty to the
status of the child and eliminate[s] the need for a procedure for recognition of
orders, or re-adoption, in the receiving country”.85 The same results could be
achieved for surrogacy.
80
Art 33 states: “The State addressed shall provide at least the same range of enforcement meth-
ods for cases under the Convention as are available in domestic cases.”
81
Art 34 states: “(1) Contracting States shall make available in internal law effective measures to
enforce decisions under this Convention. (2) Such measures may include: (a) wage withholding;
(b) garnishment from bank accounts and other sources; (c) deductions from social security pay-
ments; (d) lien on or forced social security payments; (e) tax refund withholding; (f) withholding
or attachment of pension benefits; (g) credit bureau reporting; (h) denial, suspension or revoca-
tion of various licenses (for example, driving licence); (i) the use of mediation, conciliation or
similar processes to bring about voluntary compliance.”
82
Art 26(1)(a) of the Adoption Convention.
83
Hague Conference on Private International Law, “Report of the Special Commission of Oct-
ober 1994”, www.hcch.net/index_en.php?act=publications.details&pid=933&dtid=2, accessed
30 March 2011.
84
Ibid.
85
Hague Conference on Private International Law, “Outline: Hague Intercountry Adoption Con-
vention”, www.hcch.net/upload/outline33e.pdf, accessed 31 March 2011.
(f) Access to Birth Records by Children Born through Surrogacy Arrangements

The right of the child to obtain information about his/her origin is guaran-
teed by Article 7(1) of the UNCRC. Balance must, however, be found between
the right of the child to know his/her origin and the biological parent’s right
to privacy.86 In the context of intercountry adoption, the right of the child to
discover his/her origins is acknowledged by Article 30 of the Adoption Con-
vention. The right is, however, guaranteed only “in so far as is permitted by the
law of that State [ie the state of origin]”. This is to acknowledge the fact that
in certain circumstances an unlimited right to information might cause gross
inconvenience to the surrogate mother or egg donor.87
In traditional surrogacy arrangements the genetic parent is the surrogate
mother. In gestational surrogacy arrangements where only one of the intended
parents is genetically related to the child, the term “genetic parent” refers to
either an egg donor or a sperm donor, depending on the circumstances of the
particular case. In this case, the right of the child to information on his/her
background might prove particularly difficult to enforce as egg/sperm donor
programmes are often anonymous. Additionally, a question to be addressed is
whether a child born through a surrogacy arrangement, having attained major-
ity, should have the right to obtain indentifying information on the surrogate
mother, even if she is not the child’s genetic mother.
(g) Nationality
Preferably, a child born as a result of a surrogacy arrangement should auto-
matically acquire the nationality of the receiving state (or one of the intended
parents, if not nationals of the receiving state). If this is not possible, the CA
of the receiving state should be obliged to provide necessary assistance to the
intended parents in obtaining the nationality. The recommendation in the con-
text of the Adoption Convention should be followed: “the policy of Contracting
States regarding the nationality of the child should be guided by the overriding
importance of avoiding a situation in which an adopted child is stateless”.88
86
The right to respect for one’s private life is guaranteed by Art 8(1) of the European Conven-
tion on Human Rights.
87
“Explanatory Report”, supra n 41, [512]. Additionally, Art 16(2) of the Convention allows for
a possibility of not disclosing the identity of the child’s biological parents by the state of origin
if, “in the State of origin, these identities may not be disclosed”. Art 16(2) of the Adoption
Convention.
88
See Conclusions of the 2005 Special Commission (“Report and Conclusions of the Second
Special Commission”, supra n 41, [17]), reaffirmed by the 2010 Special Commission (“Conclu-
sions and Recommendations of the 2010 Special Commission”, supra n 32, [19]).
E. FINAL THOUGHT
Some commentators have questioned whether, given ethical questions sur-

rounding surrogacy, regulation is the right way forward, as it might have the
unintended consequence of encouraging more international surrogacy arrange-
ments.89 The form of Convention that is likely to be proposed, however, does
not envisage an increase in states accepting commercial surrogacy and would
permit international surrogacy only through CAs or accredited agencies. It is
therefore not expected that the Convention will lead to an increase in inter-
national surrogacy cases. In contrast, it is hoped that the Convention will act as
a deterrent to those who would like to take advantage of individuals involved in
international surrogacy arrangements, ie vulnerable surrogate mothers as well
as intended parents. It will do this by creating minimum standards in relation,
inter alia, to health issues, informed consent, and checks on the suitability of the
intended parents and of the surrogate mother. Last but not least, it is submitted
here that in an increasingly globalised world, all attempts to impose a complete
prohibition on cross-border surrogacy arrangements are doomed to failure. A
global ban on surrogacy would simply move surrogacy arrangements to the
black market, thereby exposing the parties to a greater risk of exploitation.90
Therefore, the only way forward is regulated international surrogacy arrange-
ments; especially for the sake of children born through these arrangements as
their best interests must be the primary concern.
89
See eg Browne-Barbour, supra n 11, 467. According to Browne-Barbour, surrogacy arrange-
ments should uniformly be regarded as void and unenforceable.
90
At a national level, evidence can be drawn from China where, following a complete ban on
surrogacy arrangements, the ‘surrogacy market’ moved underground. See Browne-Barbour, ibid,
462.

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Journal of Private International Law

ISSN: 1744-1048 (Print) 1757-8418 (Online) Journal homepage: http://www.tandfonline.com/loi/rpil20

International Surrogacy Arrangements: An urgent

Katarina Trimmings & Paul Beaumont

To link to this article: http://dx.doi.org/10.5235/jpil.v7n3.627

Published online: 07 May 2015.

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International Surrogacy Arrangements

INTERNATIONAL SURROGACY ARRANGEMENTS:

KATARINA TRIMMINGS and PAUL BEAUMONT*

B. BACKGROUND TO THE TOPIC

Recent developments and research in the area of reproductive medicine have

despite controversies over ethical aspects of surrogate motherhood,4 surro-

A surrogate mother can be defined as a woman who carries a child pursuant

C. DUAL PATTERN: LEGAL REASONS AND ECONOMIC REASONS

Domestic legal responses to surrogacy differ widely between jurisdictions.12

ices and a “ready availability of poor surrogates”15 in places such as India,

In the absence of a global legislative response, highly complex legal prob-

The genetics test raises difficult questions in surrogacy arrangements involving

economic needs.29 This concern is particularly legitimate in cases of surrogacy

Cumberland Lodge, England in August 2009.35 Even more importantly, the

entage, in particular on the broader range of private international law issues

2. Objectives of the Convention

3. Effects of the Convention

area of international protection of children.46 This success is particularly due

5. Scope of the Convention

of habitual residence of the intended parent(s) is the “receiving country” (of

A similar approach is taken by the Convention of 1 August 1989 on the Law

(a) Best Interests of the Child

(b) Biological Connection

to instances where at least one of the intended parents is biologically related

of accredited bodies; the extent of an accredited body’s functions; accredita-

2. Informing intended parents about the legal aspects and consequences of

9. Other Matters that Require Further Examination

and medical and other pregnancy-related expenses.77 The reasonable living

(b) Payments Beyond Reasonable Expenses

(c) Lawyers’ and Intermediaries’ Fees

(d) Actual Enforcement of Surrogacy Arrangements

of 23 November 2007 on the International Recovery of Child Support and

to enforce decisions under this Convention” and gives an illustrative list of

(e) Recognition and Effects of Surrogacy Arrangements

(f) Access to Birth Records by Children Born through Surrogacy Arrangements

Some commentators have questioned whether, given ethical questions sur-

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