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International Procreation And Surrogacy Notes

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(5) International Procreation and Surrogacy
Seminar Notes
Note: Surrogacy as a test case for considering theories on parenthood and parental responsibility/rights
ASSUME: For surrogacy to take place, must be genetic connection to at least one of the intended parents
Diversity of domestic legal systems:
- (a) Surrogacy friendly (commercial surrogacy permitted, either regulated or unregulated and operating without prohibition)
- (b) Neutral (UK — tolerate some forms, but prohibit others)
- (c) Anti-surrogacy (Italy and France) (prohibit surrogacy entirely)
-  Problem: Easy of movement between countries — what do neutral or prohibitive countries do when citizens go abroad, enter into arrangement that is prohibited or considered morally dubious, and then return home with child?
English law prohibits commercial surrogacy: criminal offences to make money from facilitating surrogacy; and surrogacy contracts non-enforceable
- HOWEVER: Tolerates, and to some extent facilitates, altruistic surrogacy
Rules of parenthood as they apply at point of birth — same are normal: surrogate mother is legal mother —second parent will depend on relationships (eg. husband) and genetic connection to child
- Intended parents need to apply for Section 54 Parental Order — requires consent from mother (and any other legal parent)
o HOWEVER: Restrictions have been undermined significantly — in particular, through two developments:
 (1) Increasing portion of surrogacy cases where people have gone abroad, entered into arrangement that do not fit within section 54 and court faced within consideration of child's best interests
 (2) HFEA Regulations 2010 make child's welfare paramount, not just in granting the order, but in interpreting section 54
International Regulation, including possibility of international Convention and comparison to Adoption
- Obvious similarities between adoption and surrogacy: inter-country parentage, motivated by same concerns (to curb abuses and address limping status)
- HOWEVER: Differences:
o (a) General consensus of adoption as a practice that can benefit children versus ethical divergence surrounding surrogacy

(b) Adoption more clearly based on child's needs versus surrogacy more obviously connected by parent's desire to create family

(c) Adoption often dealing with a child that already has relationship/identity in country of birth versus new born baby in the context of surrogacy
- Hague Convention on Inter-Country Adoption based on two key features:
o (1) Welfare — paramount — both in respect of individual child and way that system itself is set up

(2) Subsidiarity — assumption that it is best for the child to be brought up in birth family — if not possible, best to remain in country of their birth — inter-country adoption only where these options are not available

1 Position in English Law — Academic Commentary
*FentonGlynn 2015

The Regulation and Recognition of Surrogacy under English Law
NOTING increase in international surrogacy leading to issue of whether English law should recognise an agreement that takes place legally in one jurisdiction which is contrary to domestic legislation
Argument:
(1) In deciding whether to authorise surrogacy arrangement (grant a parental order), tension between (a) English prohibition on commercial surrogacy
(enforcement of statutory provisions) and (b) paramountcy of child's welfare
(2) While public policy may oppose surrogacy agreements, child's welfare requires that arrangement be given effect — courts have been forced to "stretch" and
"manipulate" the law to fit requirements of child's welfare, such that "legislation little more than an empty shell"
- Elevation of child's welfare to "paramount" consideration (HFEA Order 2010) further undermined ability to refuse parental order

Re L (2010): Only in the clearest case of abuse of public policy that court will be able to withhold an order if otherwise welfare considerations supports its making
- Only area in which courts have "stood strong" has been requirement that commissioning parents are domiciled in the UK
(3) Permissive approach — such that parental order a "foregone conclusion" — illustrated in relation to:
- (A) Payments beyond reasonable expenses:
o Re C (2002): While expenses higher than 'reasonably incurred', retrospectively authorised payments — in balancing welfare against degree of taint on the transaction, sum was not so disproportionate to render it patently inapt

Re X and Y (2008) [See notes below]
o Despite payments ranging from US$23000 to US$53000, no application for parental order refused on grounds of payments contrary to section 54

Courts will not look to objective standards based on profit-making or commercial activity — rather, take subjective view of what is permitted in country in which surrogacy takes place (ie. so long as payments permitted by legal framework in country of surrogacy, courts will not interfere)
o Questions English courts have set themselves are "smokescreens that do little in effect to restrict commercial surrogacy
- (B) Effect on surrogate mother:
o Even in circumstances indicating lack of ability to negotiate or absence of legal advice, courts have not used these factors to question the surrogate mother's freedom of choice
 'Exploitation' of birth mother (ie. extortionate sums that could not help but overbear her will) unlikely to be sufficient — if birth mother does not want to keep child, then by the time application comes before courts, child's welfare will almost inevitably dictate that the order be made — "sins of the parents must not bear on the child"
o Re D and L: original consent given less than six weeks after birth but surrogate mother could not be contacted — while consent not valid for

2 section 54 purposes, Court held that it was entitled to take the fact that consent has been given (at some stage) into account
Acknowledge "dilemma" of recognising international surrogacy agreements: courts undertaking ex-post facto examination of situation in which they have no opportunity to talk to surrogate mother, no ability to effectively examine circumstances of the negotiation or agreement and faced with parent-child relationship that is already established in fact
(C) Extension of time-limits

Re X [See notes below]
o(4) In effect:
- (a) delegation of responsibility — presumes that home jurisdiction will adequately protect surrogate mothers
- (b) while respecting legal pluralism, undermines rationale behind English law: that no matter the jurisdiction in which the child is born, parenthood should be assigned according to English law
(5) Currently, little opportunity for surrogacy to be policed effectively through controlling recognition and parenthood — in cases of commercial surrogacy undertaken overseas, once case comes before court there is little choice but to grant order
- Does not mean that courts have wrong conclusion — faced with the "impossible task" of (a) achieving a balance between public policy and child welfare and (b) simultaneously being told that there can be no balance due to paramountcy of child's welfare

HOWEVER: Need re-evaluation of the way in which surrogacy is regulated — principled approach that provides certainty and consistency and protects rights of surrogate mothers and children

Human Rights: Position under the ECHR — Academic Commentary
Mulligan 2018

(1) Noting that surrogacy is deeply divisive in Europe, ECtHR approach has been to accept engagement of Article 8 but allow States wide margin
- (a) Limited consensus among States and (b) morally/ethically sensitive nature of issues

HOWEVER: Where restriction touches of individual's identity, tends towards narrow margin
- In virtually all cases concerning assisted reproduction, assessment of margin of appreciation central to ultimate conclusion
(2) Tensions exist between leading cases:
- Mennesson v France (legal status of surrogate-born children)
o Raised possibility that States could be compelled to respect and recognise the results of cross-border surrogacy arrangements
 ECHR as requiring States to vindicate child's right to legal recognition of genetic father-child relationship
 Thus: erodes efficacy and integrity of domestic prohibition
- Paradiso v Italy (enforcement of prohibition of surrogacy)
o Reaffirmation of State discretion to prohibit surrogacy and take robust action to deal with illegal surrogacy arrangement
 HOWEVER: Lack of genetic link vital to allowing ECtHR to adopt deferential approach
 Essential to determination of standing — case orientation fundamentally different to Mennesson
(3) Tensions reconciled by appreciating pivotal importance of the right to identity
- Mennesson: finding fundamentally premised on fact that denial of legal recognition interfered with child's right to identity

3 o Typically wide margin of appreciation narrowed because 'particularly important' fact of individual's identity at stake
Paradiso: did not engage child's right to identity (no genetic relationship and no standing)
o In the absence of interference with right to identity, margin of appreciation remained broad
In effect: While States retain wide discretion in prohibition of surrogacy, discretion radically reduced in relation to legal recognition of (genetic) parentchild relationship (strong implication that States only required to recognise relationship where genetic link exists)

(4) HOWEVER: ECtHR has adopted unduly narrow interpretation of identity
- (a) If identity is so strongly protected, ECtHR should extend protection to identity interests arising from surrogate-born child's relationship to genetic mother and intended parents with no genetic link
(b) If identity focused on importance for purposes of self-formation and self-development, grounds for broader concept of identity

Richer interpretation which encompasses child's genetic heritage and relationship with not only genetic identity, but also with gestational and intended parents
  Then: All State interventions which affect legal status of a child born through surrogacy, even in absence of genetic link, would be viewed as engaging child's right to identity, and thus subject to narrow margin of appreciation
(5) While ECtHR vindicate one important aspect of child's rights — right to identity — overall approach not centred around children's rights
- Best interest principle subordinated to emphasis on the genetic link
Achmad 2014

(1) Mennesson and Labassee — ECtHR upheld best interests and children's rights in context of Article 8 rights — "unambiguous, child-centred approach"
- Central thrust of reasoning: focus on substantive right to identity (ECHR and CRC) — criticality of child-parent nexus to identity formation
(2) HOWEVER: Court did not account for full picture concerning genetic and biological makeup — could and should have observed children's genetic relationship with genetic mothers (oocyte donors) and biological relationship with surrogate (gestational) mothers — form significant aspect of identity
- More holistic approach in considering rights of the child and what is required in order to fully uphold child's best interests in ICS situations
(3) Noting that ICS is driven towards producing a child — child is at centre of arrangements and yet often child's rights are least considered and protected
(4) HOWEVER: Must recognise rights of other parties involved — especially rights of surrogate women
- Potential rights conflict with commissioning parents and/or future child:
- Surrogates own claim based in identity (to know child)

Wade

EXAMINES regulation of surrogacy in English law from children's rights perspective
(1) Children's rights-based review — three central requirements:
- (a) Regulation should reflect concept of child as independent rights holder of range of comprehensive rights

Best interests (CRC Article 3) of children must be assessed by reference to all other CRC rights

Respect for rights of each child without discrimination of any kind, including on basis of 'birth or other status' (CRC Article 2)
- (b) Recognition that fulfilment of parental responsibilities is central to children's enjoyment of rights

4 Parents have 'primary responsibility for the upbringing and development of the child' and states should 'render appropriate assistance' in this regard (CRC Article 18) (ie. regulatory framework should support parents in protection of children's rights)
(c) Regulation must be shaped by principles of child participation (CRC Article 12) (ie. children's opinions should assist in shaping law, policy and practice)
o(2) Welfare of the child and requirements for parental orders under English law — inter alia:
- (i) Need for genetic link (based on rationale of legitimising relationship and protecting against parents 'commissioning' children for adoption)
o HOWEVER:
 Difficult to justify — no requirements exist in cases of non-surrogate birth following double gamete donation
 Does not align with considerations based on welfare (ie. genetic link to parents not crucial to realisation of child's well-being)
- (ii) Application must be made by a couple

HOWEVER:
 Couple requirement is discriminatory
 Children's psychological adjustment not detrimentally affected by being raised by single parent
 CRC does not adhere to particular family form — instead, emphasise quality of parenting/ability to care for child in a way that facilitates realisation of his/her rights
- (iii) No money or other benefit (excluding reasonable expenses) can be exchanged without court authorisation

Note: Despite clear legislative stance against commercial surrogacy, courts tend to retrospectively allow payments
(3) CRC Committee Concluding Observations (India) (2014): 'commercial use of surrogacy, which is not properly regulated, is widespread, leading to the sale of children and the violation of their rights'
- Unclear: (a) on what basis CS amounts to "sale of children" and which rights are violated; and (b) whether Committee means to say that inadequate regulation is problematic, or that it is the failure to ban commercial surrogacy.
(4) Justification for legislative stance against CS partly related to considerations of welfare:
- Warnock Report: general degrading to child, as they will have been brought for money
- Brazier Report: may be psychologically damaging for children, and not necessarily in best interests to learn that surrogate mother benefitted financially from their birth and giving them away
- HOWEVER: No detailed analysis of why this may be the case  need to research impact of CS on children's rights that includes their opinions
(5) Hague Conference on Private International Law (HCCH) suggestion for multilateral convention on inter-country surrogacy:
- If international treaty negotiated, CRC (given near universal ratification) would be appropriate starting point for key issues in relation to ICS:
o (a) Right to nationality

(b) Legal recognition of parenthood

(c) Right to know one's genetic origins

International Regulation — Academic Commentary

5 Trimmings and
Beaumont 2011

International Surrogacy Arrangements: An Urgent Need for Legal Regulation at the International Level
NOTING:
- (i) Variety of domestic responses leads to "forum shopping" ("surrogacy-friendly" jurisdictions)
- (ii) Void in the international regulation of surrogacy arrangements leads to highly complex legal problems, including:
o (a) Question of legal parenthood — contrasting approaches: gestational, genetic and/or intent test

(b) Nationality of the child

(c) Situations including: multiple births; disability on birth
- (iii) Widely recognised urgent need for "multilateral treaty to establish global, coherent and ethical practice of international surrogacy
Argument: Propose international surrogacy Convention:
(1) Should not aim at unification of rules — rather, flexible approach and minimum standards to:
- recognise and make compatible varying national systems
- emphasise need for substantive safeguards and procedures for authorities
- give States scope to agree on details (ie. suitability of "intended parents" and surrogate mother, and payments)
(2) Proposed objectives — functional approach based on division of responsibilities with primary goals to:
o (a) develop system of legally binding standards;
o (b) develop system of supervision to ensure that standards are observed; and

(c) establish a framework of co-operation and channels of communication between jurisdictions involved.
(3) Based on two fundamental principles:
- (a) Best interests of the child: paramount consideration in intercounty surrogacy arrangements (in accordance with CRC Article 3)
o HOWEVER: Rights of other persons must also be taken into account (CRC Article 3(2)) — balance among all interests
- (b) Biological connection: surrogacy as last resort and restricted to instances where at least one intended parent is biologically related

Ensure cross-border surrogacy not perceived as possible "shortcut" to obtaining a biologically non-related child from abroad
(4) Proposed effects:
- (a) Promote exchange of information and transmission of documents
- (b) Reduce "limping" or unrecognised surrogacy arrangements
- (c) Help combat trafficking in women and children — however: like Adoption Convention, only indirectly — expectation that observation of Convention leads to avoidance of abuses
(4) Suggested that cooperative framework be based on template of "highly successful" Adoption Convention — most suitable because:
o (a) one of most effective instruments in international protection of children (wide spectrum of States indicates right balance between concerns of States of origin and receiving States)
o (b) drafted in a "very flexible and morally neutral way"

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