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The Human Rights Implications of Not-for-Profit Surrogacy Organizations in Cross-Border Commercial Surrogacy: An Australian Case Study

Published online by Cambridge University Press:  02 March 2022

Yingyi Luo Open the ORCID record for Yingyi Luo [Opens in a new window] ,
Shelley Marshall  and
Denise Cuthbert
Yingyi Luo*
Affiliation:
PhD Candidate, Graduate School of Business and Law, RMIT University, Melbourne, Australia
Shelley Marshall
Affiliation:
Associate Professor, Graduate School of Business and Law, RMIT University, Melbourne, Australia
Denise Cuthbert
Affiliation:
Professor, School of Graduate Research, RMIT University, Melbourne, Australia
*
*Corresponding author. Email: [email protected]
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Extract

Cross-border surrogacy is a global industry that offers intended parents options for family formation by providing foreign surrogate mothers remuneration, directly or via an intermediary, in excess of their actual out-of-pocket expenses. It is a multi-million-dollar business with no international regulation.1 In most countries, limited domestic regulation or oversight is in place. Many countries − such as Australia, the United Kingdom, New Zealand, Canada, Hong Kong and South Africa − only permit altruistic surrogacy, while Germany and France ban surrogacy entirely.2 Fully legalized commercial surrogacy is the model followed in some states in the United States of America (USA), as well as Georgia and Ukraine.3 This unregulated cross-border market has produced a lucrative business, with surrogacy arrangements growing by nearly 1,000 per cent between 2006 and 2010.4 The for-profit surrogacy sector has expanded and fertility not-for-profit organizations have also entered the market.5

Keywords

cross-border commercial surrogacygenderhuman rightsnot-for-profit surrogacy organizationsUnited Nations Guiding Principles on Business and Human Rights (UNGPs)
Type
Developments in the Field
Information
Business and Human Rights Journal , Volume 7 , Issue 1: Special Issue: From Formalism to Feminism: Gender, Business and Human Rights , February 2022 , pp. 163 - 167
Copyright
© The Author(s), 2022. Published by Cambridge University Press

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References

1 Usha Rengachary Smerdon, ‘Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India’ (2008) 39:1 Cumberland Law Review 15.

2 Katarina Trimmings and Paul Beaumont (eds.), International Surrogacy Arrangements: Legal Regulation at the International Level (London: Bloomsbury, 2013). This book outlines countries’ policies regarding surrogacy.

3 Ibid.

4 Hague Permanent Bureau, ‘A Preliminary Report on the Issues Arising from International Surrogacy Arrangements’ (2012), https://assets.hcch.net/docs/d4ff8ecd-f747-46da-86c3-61074e9b17fe.pdf (accessed 7 October 2021).

5 Cervi, Lucia, ‘The Business of Assisted Reproductive Technologies: A Research Agenda’ in Grosser, Kate, McCarthy, Lauren and Kilgour, Maureen A (eds.), Gender Equality and Responsible Business: Expanding CSR Horizons (London: Routledge, 2016).Google Scholar

6 Patricia Fronek, ‘Current Perspectives on the Ethics of Selling International Surrogacy Support Services’ (2020) 8 Medicolegal and Bioethics 11.

7 Twine, France Winddance, Outsourcing the Womb: Race, Class and Gestational Surrogacy in a Global Market, 2nd edn (London: Routledge, 2015).CrossRefGoogle Scholar

8 Ibid; Gerber, Paula and O’Byrne, Katie (eds.), Surrogacy, Law and Human Rights (Farnham: Ashgate, 2015).Google Scholar

9 This research is being conducted by Yingyi Luo towards her PhD candidacy. Ethics approval provided in 2019 by RMIT Human Research Ethics Committee.

10 Julie Shapiro, ‘For a Feminist Considering Surrogacy, is Compensation Really the Key Question?’ (2014) 89:4 Washington Law Review 1345; Anindita Majumdar, ‘The Rhetoric of Choice: The Feminist Debates on Reproductive Choice in the Commercial Surrogacy Arrangement in India’ (2014) 18:2 Gender, Technology and Development 275.

11 House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (Canberra: Commonwealth of Australia, 2016). This report outlines surrogacy laws in comparable jurisdictions.

12 Ibid.

13 Ibid; Gallagher, Maggie, ‘Why Do Parents Have Rights? The Problem of Kinship in Liberal Thought’ in Goodwin, Michele Bratcher (ed.), Baby Markets: Money and the New Politics of Creating Families (New York: Cambridge University Press, 2010) 164.CrossRefGoogle Scholar

14 Global Human Rights Clinic, ‘Human Rights Implications of Global Surrogacy’(2019), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1009&context=ihrc (accessed 7 October 2021). This report details the human rights of surrogate mothers.

15 Yasmine Ergas, ‘Thinking “Through” Human Rights: The Need for a Human Rights Perspective with Respect to the Regulation of Cross-Border Reproductive Surrogacy’ in Katarina Trimmings and Paul Beaumont (eds.), International Surrogacy Agreements: Legal Regulation at the International Level (Oxford: Hart Publishing, 2013) 428.

16 John Tobin, ‘To Prohibit or Permit: What is the (Human) Rights Response to the Practice of International Commercial Surrogacy?’ (2014) 63:2 The International and Comparative Law Quarterly 317.

17 Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011) (UNGPs).

18 Ronli Sifris, Karinne Ludlow and Adiva Sifris, ‘Commercial Surrogacy: What Role for Law in Australia?’ (2015) 23:2 Journal of Law and Medicine 275.

19 House of Representatives Standing Committee on Social Policy and Legal Affairs, note 11, 3.

20 Anita Stuhmcke, ‘The Regulation of Commercial Surrogacy: The Wrong Answers to the Wrong Questions’ (2015) 22 Journal of Law and Medicine 333; Mary Keyes, ‘Cross-Border Surrogacy Agreements’ (2012) 26:1 Australian Journal of Family Law 28.

21 Jenni Millbank, ‘Rethinking “Commercial” Surrogacy in Australia’ (2015) 12:3 Journal of Bioethical Inquiry 477.

22 Families through Surrogacy, ‘About Us’, https://www.familiesthrusurrogacy.com/about-us/ (accessed 31 October 2019); Growing Families, ‘About Us’, https://www.growingfamilies.org/about-us (accessed 7 October 2021).

23 Ibid.

24 Ibid.

25 Ibid.

26 Growing Families, ‘Start Your Journey Now’, https://www.growingfamilies.org/starting-your-journey-now (accessed 7 October 2021).

27 See, e.g., Fronek, note 6; Khiara M Bridges, ‘Windsor, Surrogacy and Race’ (2014) 89 Washington Law Review 1125, 1134; Jessica M Caamano, ‘International, Commercial, Gestational Surrogacy Through the Eyes of Children Born to Surrogates in Thailand: A Cry for Legal Attention’ (2016) 96 Boston Law Review 571, 582–585.

28 Global Human Rights Clinic, note 14, 20–21. This report details the human rights exploitation of surrogate mothers.

29 Ibid.

30 Madeline Roache, ‘Ukraine’s “Baby Factories”: The Human Cost of Surrogacy’, Al Jazeera (13 September 2018), https://www.aljazeera.com/features/2018/9/13/ukraines-baby-factories-the-human-cost-of-surrogacy (accessed 7 October 2021).

31 Growing Families, ‘What Is Best Practice?’, https://www.growingfamilies.org/what-is-best-practice/ (accessed 7 October 2021).

32 Growing Families, note 22. The website of Growing Families states that the focus of the surrogacy seminars is educational.

33 UNGPs, note 17, Principles 11–18.