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TO PROHIBIT OR PERMIT: WHAT IS THE (HUMAN) RIGHTS RESPONSE TO THE PRACTICE OF INTERNATIONAL COMMERCIAL SURROGACY?

Published online by Cambridge University Press:  24 April 2014

John Tobin
John Tobin*
Affiliation:
Melbourne Law School, University of Melbourne, [email protected].
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Abstract

The rapid expansion of international commercial surrogacy arrangements has created serious ethical and legal dilemmas with respect to the nationality and parentage of children conceived under such arrangements and the potential exploitation of surrogate mothers. This paper examines these dilemmas through the prism of international human rights law to assess whether a prohibitionist or permissive approach should be adopted with respect to this practice.

Keywords

children's rightscommercial surrogacyhuman rights lawinternational lawprivate international lawwomen's rights
Type
Articles
Information
International & Comparative Law Quarterly , Volume 63 , Issue 2 , April 2014 , pp. 317 - 352
Copyright
Copyright © British Institute of International and Comparative Law 2014 

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References

1 See, Permanent Bureau of the Hague Conference on Private International Law, A Preliminary Report on the Issues From International Surrogacy Arrangements, Preliminary Document No 10 (March 2012), [4] and [6] (‘Permanent Bureau Preliminary Report’) (noting growth of nearly 1,000 per cent in the market for such arrangements between 2006 and 2010).

2 For an overview of the social and ethical dilemmas see, ibid paras 1–3 and notes 7–12 and for a detailed account of the legal issues see, ibid paras 29–43 and Permanent Bureau of the Hague Conference on Private International Law, Private International Law Issues Surrounding the Status of Children, Including Issues Arising from International Surrogacy Arrangements, Preliminary Document No 11 (March 2011) (‘Permanent Bureau Private International Law Issues Report’).

3 See Permanent Bureau Preliminary Report (n 1) and Permanent Bureau Private International Law Issues Report (n 2).

4 Permanent Bureau Preliminary Report (n 1) [3].

5 Ibid [48].

6 See eg Hanna, J, ‘Revisiting Child-Based Objections to Commercial Surrogacy’ (2010) 24 Bioethics 341Google Scholar (providing a thoughtful analysis of the ethical issues associated with surrogacy but concludes that ‘children's rights probably do not pose an obstacle to the acceptability of commercial surrogacy’ without any assessment as to the source, nature, meaning and content of these rights); Simmons, K, ‘Reforming the Surrogacy Laws of Australia: Some Thoughts, Considerations and Alternatives’ (2009) 11 FJLR 97, 122Google Scholar (stressing that the best interests of the child should be the priority in a surrogacy arrangement but offering no substantive discussion as to how these interests ought to be determined and the potential role of international human rights law in this context). cf Stark, B, ‘Transnational Surrogacy and International Human Rights Law’ (2012) 18 ILSA Journal of International and Comparative Law 1Google Scholar (identifying many of the relevant human rights but still overlooking issues relating to the potential sale of the child and exploitation of surrogate and not seeking to reconcile the competing rights); Y Ergas, ‘The Transnationalization of Everyday Life: Cross- Border Reproductive Surrogacy, Human Rights and the Re-visioning of International Law’ March 12 (paper presented at the Workshop on Deconstructing and Reconstructing ‘Mother’, Institute for Social and Economic Research and Policy, Columbia University, 19 April 2012) (providing a sophisticated theoretical discussion of this issue within the context of international law and identifies many of the relevant rights but still does examine their content or how they should be balanced in any detail).

7 By implication an altruist surrogacy arrangement involves an arrangement where the intending (or commissioning) parent(s) pay, if anything, nothing more than the out of pocket expenses incurred (or to be incurred) by the surrogate. It is acknowledged that the boundaries between these terms differ among commentators. For example, the approach taken in the glossary of the Permanent Bureau Private International Law Issues Report (n 2) is to define a commercial surrogacy arrangement as an arrangement ‘where the intending parent(s) pay the surrogate financial remuneration which goes beyond her reasonable expenses.’ Such a definition contemplates that reasonable expenses could be taken to include loss of earnings for the surrogate whilst pregnant. But as will be discussed in Pt 2, international law prohibits the transfer of a child for remuneration or any other form of consideration. Thus, anything that involves a payment or remuneration for anything other than actual or pending out of pocket expenses (ie medical fees and charges) could arguably be considered remuneration or another form of consideration.

8 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’).

9 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, opened for signature 25 May 2000, 2171 UNTS 227 (entered into force 18 January 2002) (‘CRC Optional Protocol’).

10 See Permanent Bureau Preliminary Report (n 1) [8]–[30] (outlining current perspectives taken by States with respect to surrogacy arrangements and noting that only a handful of States permit commercial surrogacy arrangements namely Georgia, India, Russia, Thailand, Uganda, Ukraine and 18 states within the USA, at note 94. Importantly this list represents those countries that allow for payments beyond reasonable expenses.).

11 ibid [5].

12 The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, opened for signature 29 May 1993, 32 ILM 1134, [1998] ATS 21, (entered into force 1 May 1995) (‘Hague Convention on Intercountry Adoption’). Art 4(c)(3) provides that an adoption under the Convention shall take place only if ‘the consents have not been induced by payments or compensation of any kind and have not been withdrawn’. Despite suggestions from some commentators that the Hague Convention on Intercountry Adoption could be used as a template to facilitate international commercial surrogacy arrangements, the Preliminary Bureau has recognized the limitations of this approach for at least four reasons: (i) the Hague Convention prohibits commercial adoptions (art 4(c)(3); (ii) consent is required after the birth of the child (art 4(c)(4)) whereas it will be given prior to birth under a surrogacy arrangement; (iii) the subsidiarity principle, namely that preference should be given to placement of the child within the country of birth (art 4(b)) and (iv) the rule that prospective adopting parents should have no contact with the child's birth parents (art 29). See Private International Law Issues Report (n 2) [43].

13 Permanent Bureau Preliminary Report (n 1) [48].

14 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980). Art 26 states that ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.’

15 International Law Commission, Report of the Study Group on Fragmentation of International Law, 54th Session of the International Law Commission, Geneva, 29 April–7 June and 22 July–16 August 2002, A/CN.4/L.628, [491].

16 See Tobin, J, The Right to Health in International Law (OUP 2012) 49–50Google Scholar (the idea of incomplete theorization means that States are able to reach agreement on the inclusion of certain rights within a treaty without formal agreement on the specific principles or theory that justifies the inclusion of the particular right).

17 See eg Habermas, J, ‘The Concept of Human Dignity and the Realistic Utopia of Human Rights’ (2010) 41 Metaphilosophy 465Google Scholar; McCrudden, C, ‘Human Dignity and the Judicial Interpretation of Human Rights’ (2008) 19 EJIL 655Google Scholar; Tasioulas, J, ‘Towards a Philosophy of Human Rights’ (2012) 65 CLP 1Google Scholar.

18 See generally Ergas (n 6) 42–50.

19 See eg Ashcroft, R, ‘Could Human Rights Supersede Bioethics?’ (2010) 10 HumRtsLRev 639Google Scholar.

20 See Tobin, J, ‘Judging the Judges: Are they Adopting the Rights Approach in Matters Involving Children?’ (2009) 33 MULR 579Google Scholar (providing a more detailed explanation and illustration for each of these approaches).

21 It is important to stress that there is nothing inherently wrong with the failure to consider the human rights dimensions of a complex social and ethical issue. Indeed commentators have lamented the colonizing impact of human rights and its tendency to be used to displace alternative discourse of justice and equity: see eg Kennedy, D, ‘The International Human Rights Movement: Part of the Problem?’ (2001) 14 HarvHumRtsJ 101Google Scholar, 120. However, as the discussion above demonstrated there are valid legal and moral reasons for making recourse to international human rights law in the context of international surrogacy arrangements. The other point to keep in mind is that from the perspective of domestic law there may well be domestic human rights instruments within a State that are relevant to this issue.

22 Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).

23 Opened for signature 16 December 1966, 1957 UNTS 407 (entered into force 23 March 1976) (‘ICCPR’).

24 See citations listed (n 6).

25 See Tobin (n 20) 21.

26 For the purposes of this analysis, the definition of intending parent(s) used by the Permanent Bureau is adopted: ‘The person(s) who request another to carry a child for them with the intention that they will take custody of the child following the birth and parent the child as their own. Such persons may or may not be genetically related to the child born as a result of the arrangement’: see the glossary of the Permanent Bureau Preliminary Report (n 1). It is recognized that the term ‘intending parents’ can be used interchangeably with the term ‘commissioning parents’.

27 This analysis does not provide a detailed analysis of whether the discrimination against gay and lesbian couples with respect to issues such as access to assisted reproductive technology, surrogacy arrangements, foster care or adoption, which is common in many States, is justified. I have canvassed these issues in detail elsewhere and have argued that such discrimination is not necessary to secure the bests interest of a child and as such represents a violation of the rights to non-discrimination and equality before the law: see Tobin, J and McNair, R, ‘Public International Law and the Regulation of Private Spaces: Does the Convention on the Rights of the Child Impose an Obligation on States to Allow Gay and Lesbian Couples to Adopt?’ (2009) 23 IJLPF 110Google Scholar.

28 See Programme of Action of the International Conference on Population and Development, UN Doc A/CONF.171/13 (18 October 2004), ch. 1, res 1 annex ch VII, 43, at [7.2].

29 See eg Committee on the Rights of the Child, The Role of the Family the Promotion of the Rights of the Child, 7th Session 10 October 1994 CRC/C/24, at [2.1] (‘[w]hen considering the family environment the Convention reflects different family structures arising from the various cultural patterns and emerging familial relationships. In this regard the Convention refers to the extended family and the community and applies to situations of nuclear family, separated parents, single parent family, common law family and adoptive family’).

30 SH and Others v Austria (2011) 3 Eur Court HR [80].

31 Ibid [81].

32 ibid [82].

33 Art 17 of the ICCPR states as follows:

  1. 1.

    1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

  2. 2.

    2. Everyone has the right to the protection of the law against such interference or attacks.

34 Human Rights Committee, General Comment 16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (Art. 17), 32nd sess, (8 April 1988), [4].

35 See United Nations, Economic and Social Council, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 (28 September 1984) (‘Siracusa Principles’); Tobin (n 16) 180–4. cf art 8 of the European Convention on Human Rights, where these qualifications with respect to the scope of the right to respect for private and family life and explicitly provided for within the text of art 8. In contrast they must be implied into the meaning of the term ‘arbitrary’ under art 17 of the ICCPR.

36 Universal Declaration of Human Rights, GA Res 217A,(III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), art 27; Siracusa Principles (n 35) [27].

37 Siracusa Principles (n 35) [10]–[11]; Tobin (n 16) 181–4.

38 CRC, art 7.

39 CRC, arts 5, 18 and 27.

40 See (n 29).

41 It is acknowledged that this gives rise to the potential for a conflict between the rights of the child and the rights of those persons involved in his or her creation who wish to remain anonymous. This is a complex issue which I have addressed in detail elsewhere: see Tobin, J, ‘Donor Conceived Individuals and Access to Information about Their Genetic Origins: The Relevance and Role of Rights’ (2012) 19 Journal of Law and Medicine 742Google Scholar. In summary, I have argued that international law supports a child's right to know the identity of his or her parents and that States have an obligation to prohibit anonymity with respect to the donation of genetic material. The reasoning underlying this proposition would also extend to a prohibition on the anonymity of a gestational mother (where she was not the biological mother).

42 See eg Horsey, K, ‘Challenging Presumptions: Legal Parenthood and Surrogacy Arrangements’ (2010) 22 CFLQ 449Google Scholar; Hill, J ‘What Does It Mean to Be a “Parent”? The Claims of Biology as the Basis for Parental Rights’ (1991) 66 NYULRev 354, 386Google Scholar.

43 It is also problematic from the perspective of the gestational mother to the extent that it devalues her role in the creation of the child relative to the genetic contribution made by the other persons involved in the arrangement. This concern is discussed in more detail below.

44 Blair, M, ‘The Impact of Family Paradigms, Domestic Constitutions and International Conventions on Disclosure of an Adopted Person's Identities and Heritage: A Comparative Examination’ (2001) 22 MichJIntlL 587, 648Google Scholar.

45 The resistance to using a child's right to identify to justify access to donor information for donor-conceived children generally stems from an assumption that the drafting history of this right precludes such an interpretation. In summary, the inclusion of this right in the CRC was motivated by the Argentinean delegation, which sought to respond to the practice whereby children were removed from their families and placed with families of the military junta. However, it is a well-accepted principle of human rights interpretation that the drafting history of a human right is instructive but not determinative as to the meaning of a right. It is also accepted that the meaning of a right can evolve over time, the critical issue being whether the purported meaning can be defended as being principled, practical, coherent and context-sensitive: see Tobin, J, ‘Seeking to Persuade: A Constructive Approach to Treaty Interpretation’ (2010) 23 HarvHumRtsJ 1Google Scholar. The argument made here is that the extension of the right to identity to include access to information about genetic parents satisfies each of these criteria. If the core rationale underlying the Argentinean proposal was to ensure that children were provided with true and accurate information about their identity, then the extension of this principle to all those persons involved in the creation of a child conceived under a surrogacy arrangement, is consistent with this rationale.

46 See Committee on the Rights of the Child, Concluding Observations for Norway, UN Doc CRC/C/15/Add23 (25 April 1994), [10].

47 ibid.

48 Freeman, M, ‘The New Birth Right? Identity and the Child of the Reproduction Revolution’ (1996) 4 International Journal of Children's Rights 273, 291Google Scholar.

49 Wallbank, J, ‘Too Many Mothers? Surrogacy, Kinship and the Welfare of the Child’ (2002) 10 MedLRev 271Google Scholar (stressing the importance of a child having knowledge of his or her mode of conception and surrogate mother).

50 Pretty v United Kingdom [2002] Eur Court HR 427, [61]. See also the more recent decision of Georgel and Georgeta Stoicescu v Romania [2011] Eur Court HR 1192, [48]–[49]. It is important to note that the formulation of the right to privacy under the European Convention on Human Rights is different from the formulation under the ICCPR. However, it is an accepted principle of international law that decisions from one human rights jurisdiction can be used to interpret the meaning of a similar right within another jurisdiction. Se Tobin (n 45) 229–31 (discussing how this process is used to enhance the coherence of the reasoning that underlies the interpretation of a human right).

51 Pretty v United Kingdom (n 50) [23] (This argument was raised by counsel for the applicant.).

52 Jaggi v Switzerland [2010] Eur Court HR 1815 (App No 58757/00) (2006), [37]. See also: Mikulić v Croatia [2002] 1 FCR 720, cited in Odièvre v France [2003] ECHR 86, at [44] (‘people have a right to know their origins, that right being derived from a wide interpretation of the scope of the notion of private life’).

53 Gaskin v United Kingdom (1989) 12 Eur Court HR (ser A) 36, [39].

54 Ibid [49].

55 Rose v Secretary of State for Health and Human Fertilisation and Embryology Authority [2002] EWHC 1593 (Admin), [48] (the court was only required to determine whether the right to privacy had been engaged on the facts of the case and made no determination as to whether the refusal to release identifying information would constitute a violation of this right). See also Bensaid v United Kingdom [2001] 33 Eur Court HR 10, [47] (holding that art 8, the right to respect for private and family life, protects ‘a right to identity and personal development’).

56 See, McNair, R, Outcomes for Children Born of ART in a Diverse Range of Families (Victorian Law Reform Commission, 2004)Google Scholar 43 (arguing that research indicates that ‘identity is related to genetic inheritance is some way’ and a fuller sense of identity for a donor conceived person may only be achieved through access to details about their donor). See also, evidence of the applicant, a donor-conceived individual, in Rose v Secretary of State for Health and Human Fertilisation and Embryology Authority (n 55) [7].

57 See eg art 30. This provision is concerned with ethnic, religious, linguistic, and indigenous children and their right to enjoy in community with others their own culture, religion and language. See also art 5 which requires States to respect customary practices with respect to the raising of children subject to the provision that such practices are not harmful to the health of a child. See art 24(3).

58 Woodhouse, B, ‘Are You My Mother? Conceptualising Children's Identity Rights in Transracial Adoptions’ (1995) 2 Duke Journal of Gender Law and Policy 107, 128Google Scholar.

59 See eg Jadva, V et al. , ‘Surrogacy Families 10 Years On: Relationship with the Surrogate, Decisions over Disclosure and Children's Understanding of their Surrogacy Origins’ (2012) 27 Human Reproduction 3008Google Scholar; Golombok, S et al. , ‘Families Created through Surrogacy Arrangements: Parent–Child Relationships in the 1st Year of Life’ (2004) 40 Developmental Psychology 400Google Scholar; Golombok, S et al. , ‘Non-Genetic and Non-Gestational Parenthood: Consequences for Parent–Child Relationships and the Psychological Well-Being of Mothers, Fathers and Children at Age 3’ (2006) 21 Human Reproduction 1918Google Scholar; Golombok, S ‘Surrogacy Families: Parental Functioning, Parent–Child Relationships and Children's Psychological Development at Age 2’ (2006) 47 Journal of Child Psychology and Psychiatry 213Google Scholar; Golombok, S et al. , ‘Families Created Through Surrogacy: Mother–Child Relationships and Children's Psychological Adjustment at Age 7’ (2011) 47 Developmental Psychology 1579Google Scholar.

60 Hague Convention on Intercountry Adoption, arts 4(c)(3) and 4(b).

61 Tobin (n 16) 183–4.

62 See CRC, arts 5 (respect for the responsibilities, rights and duties of parents), 27 (right to an adequate standard of living) and 18 (parental responsibilities).

63 Hague Convention on Intercountry Adoption, art 5.

64 See Trimmings, K and Beaumont, P, ‘International Surrogacy Arrangements: An Urgent Need for Legal Regulation at the International Level’ (2011) 7 JPrivIntL 627, 642–3Google Scholar.

65 The counterpoint to this argument is that if the intending parents were prepared to move to a permissive State and enter into a local, rather than international commercial surrogacy arrangement, an assessment as their suitability as parents would be more feasible.

66 See the work of Golombok et al (n 59).

67 Permanent Bureau Private International Law Issues Report (n 2) para 31 (referring to a US case in which a child born under a surrogacy arrangement died six weeks after being transferred into the care of the intending father as a result of repeated physical abuse). There have also been reports of arrangements being commissioned in order to secure inheritance: see Permanent Bureau Preliminary Report (n 1) note 7.

68 See eg ABY and ABZ v Patient Review Panel (Health & Privacy) [2011] VCAT 1382 (examining the legislative requirement that applicants for alternative reproductive technology undergo criminal record checks).

69 CRC, art 35; Optional Protocol, art 1.

70 Tobin (n 45) 14.

71 Ibid 16–23.

72 Early attempts to define the sale of children linked a transfer to ‘the purpose of sexual exploitation, prostitution and pornography’ (E/CN.4/1995/95 [44]), leading to the following Nigerian proposal in which the issues that frustrated attempts to reach consensus are evident (see generally E/CN.4/1996/101 [61], [68]–[69]; E/CN.4/1997/97 [43]–[50]; and E/CN4/1998/103 [27]–[40]):

the term ‘sale of children’ means the [transfer] [sell and purchase] of a child from one party including biological parents, guardians and institutions to another in exchange for financial or other rewards or compensation [primarily] for [the] [whatever] purpose [such as] [of] sexual exploitation [of any kind], [prostitution and pornography], [adoption for commercial purposes, criminal activities and in particular trading in and transplantation of organs.] (E/CN.4/1995/95 para 47).

The main issue was whether to confine the definition to the sale of children for the purposes of sexual exploitation or extend it to other forms of non-sexual exploitation. Ultimately, the issue was resolved by the Chairman of the Working Group, who produced a definition which required no nexus with sexual exploitation (E/CN4/2000/75) and excluded reference to the other practices which some delegations sought to list. The result is that the final definition has two core elements: (a) the transfer of a child; and (b) remuneration or other consideration. The definition is not confined to specific forms of transfer and refers to ‘any act or transaction’ involving a transfer for remuneration or other consideration. The disappointment of some delegates that a wider definition had not been adopted (see eg E/CN.4/2000/75 [44] (Norway)) is therefore unfounded. The term ‘transfer’ was ultimately preferred to alternatives such as ‘sell and purchase’ (E/CN.4/1995/95 [47]): ‘transport’ (E/CN.4/1995/95 [46]); ‘buying and selling’ (E/CN.4/1996/101 [64]); ‘unlawful acts involved in the capture, acquisition, transfer and control or disposal of child’ (E/CN.4/1996/101 [68]); ‘any kind of transaction or illicit transfer’ (E/CN.4/1998/103 [32]); and ‘delivery’ (E/CN.4/1999/74 [42]). The drafting history does not reveal why the phrase ‘transferred’ was ultimately adopted but it operates as a core element of the sale of a child which is the transfer, in part or whole, permanently or temporarily, of the physical custody and control of a child (E/CN.4/1996/101 [64]) by a person, group of persons or institution to another person, group of persons or institution. This transfer of custody and control in itself is not unlawful unless accompanied by remuneration or other consideration. There was no detailed discussion of the meaning ‘remuneration or other forms of consideration’, but the United Nations Centre for International Crime Prevention emphasized to the Working Group that it ought to be interpreted broadly and include non-monetary gains such as receipt of goods and expectations of future benefit including the advancement of the offender's lifestyle of status (E/CN.4/ 2000/WG.14/2, 10).

73 Permanent Bureau Preliminary Report (n 1) [4].

74 See the list of permissive States (n 10).

75 Hill (n 42) 354, 392.

76 This proposition can be illustrated in circumstances beyond surrogacy arrangements. For example, consider the situation between two biological parents who decide to separate or divorce. Under this analysis, one biological parent would not be able to transfer exclusive custody of the child to the other biological parent on the condition that the transferring parent received money, or some other form of consideration in return for transferring the child.

77 See generally Hanna (n 6) 341; Meyer, M, ‘The Idea of Selling in Surrogate Motherhood’ (1990) 4 Public Affairs Quarterly 175, 183–6Google ScholarPubMed.

78 See eg Ertman, M ‘What's Wrong with a Parenthood Market? A New and Improved Theory of Commodification’ in Ehrenreich, N (ed), The Reproductive Rights Reader (New York University Press 2008)Google Scholar 299, 304.

79 I say ‘presumed’ to emphasize that in theory a State could allow for the resale of child born under a surrogacy arrangement or indeed any child. Such a position would, of course, be considered morally reprehensible by the overwhelming majority of people (although would this necessarily be the case if the resale was to a person who had no intention to exploit or harm the child?). It would also be inconsistent with international law. But it should not presumed that it is impossible to sell or resell any child.

80 See discussion of definition of sale of children (n 72). The prohibition of the ‘sale of children’ under the Optional Protocol is broadly formulated and would extend to the transfer of a child for the purposes of adoption where there is remuneration or other consideration.

81 See Landes, E and Posner, R, ‘The Economics of the Baby Shortage’ (1978) 7 JLS 323Google Scholar.

82 Hague Convention on Intercountry Adoption (n 12) art 4(c)(3).

83 Slavery Convention, opened for signature 25 September 1926, 60 LNTS 254 (entered into force 9 March 1927). The Slavery Convention defines slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’ (art 1). States parties to the Slavery Convention undertake ‘to bring about … the complete abolition of slavery in all its forms’ (art 2(b)).

84 Ergas (n 6) 88 (arguing that there is ‘an evident trend in international law towards the prohibition of the sale of persons no matter what their status either prior or subsequent to the sale itself’).

85 See eg Hanna (n 6) 341; Meyer (n 77) 183–6.

86 Hanna (n 6) 344–5.

87 Ibid 345.

88 See Meyer (n 77) 185 (‘[s]elling children is … a basic offence against human dignity’).

89 See eg Pupavac, V, ‘The Infantilisation of the South and the UN Convention on the Rights of the Child’ (1988) 3 HumRtsLRev 3Google Scholar; Drumbl, M, Reimagining Child Soldiers in International Law and Policy (OUP 2012)Google Scholar.

90 For a more detailed discussion see Radin, M, ‘Market Inalienability’ (1987) 100 HarvLRev 1849Google Scholar; Satz, D, Why Some Things Should Not be for Sale: The Moral Limits of Markets (OUP 2010)Google Scholar; Sandel, M, What Money Can't Buy: The Moral Limits of Markets (Farrar, Straus and Giroux 2012)Google Scholar; Sandel, M, ‘What Isn't For Sale?’ (April 2012) 309(3) Atlantic Monthly 62Google Scholar; Sandel, M, ‘How Markets Crowd Out Morals’ (May/June 2012) 37(3) Boston Review 12Google Scholar.

91 For a discussion of this argument see Ergas (n 6) 46–50.

92 There is evidence that this risk has already materialized within India as ‘current practices suggest that surrogates and donors are chose based on their religion, caste, skin colour and attractiveness’: Bailey, A, ‘Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy’ (2011) 26 Hypatia 715, 720Google Scholar.

93 For a discussion of the commodification argument see Radin (n 90) 1925–36.

94 For an interesting analysis of the dignity argument see: Meyer (n 77) 180–6 (arguing that because a surrogacy arrangement can sometimes be characterized as a contract for service there is no sale of a child and thus no attempt by the surrogate to treat the child as a commodity and thus no violation of the child's dignity).

95 Ertman (n 78) 303.

96 See generally Radin (n 90).

97 Ibid 1934–6 (discussing the implications of this approach).

98 Siracusa Principles (n 35) [27].

99 See generally SH and Others v Austria (n 30).

100 Opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981).

101 Art 6 merely provides that ‘States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women’. In contrast art 34 of the CRC imposes an obligation on States to prohibit all forms of exploitation of children.

102 See Siracusa Principles (n 35) [27] which provides that ‘[s]ince public morality varies over time and from one culture to another, a State which invokes public morality as a ground for restricting human rights, while enjoying a certain margin of discretion, shall demonstrate that the limitation in question is essential to the maintenance of respect for fundamental values of the community’. Within this context, the protection of women against exploitation would be considered a fundamental value of a community. There is also the potential to argue that exploitation of women in the context of a surrogacy arrangement would amount to a form of degrading treatment in violation of art 7 of the ICCPR.

103 See generally Surrogate Motherhood – Ethical or Commercial (Centre for Social Research 2013); Bailey (n 92).

104 Permanent Bureau Preliminary Report (n 1) note 9 (noting that in India, which has the largest commercial surrogacy market, ‘the overwhelming majority of surrogates indicated that they had decided to become a surrogate due to ‘poverty’).

105 Bailey (n 92) 718.

106 Permanent Bureau Preliminary Report (n 1) note 9.

107 See eg Mason & Mason and Anor [2013] FamCA 424, [4].

108 Mary Keys also advised that it is common for a contract not to be signed until after a woman becomes pregnant—an approach that is inconsistent with the approach adopted in the context of altruistic surrogacy in jurisdictions where this practice is permitted.

109 Humbyrd, C, ‘Fair Trade International Surrogacy’ (2009) 9 Developing World Bioethics 111, 116Google Scholar.

110 See eg Ellison and Anor Karnchanit [2012] FamCA 602 (Australia), [132]–[139] (outlining extensive and resource intensive ‘best practice principles’ to verify the consent of the surrogate, the identity of the child and the intentions and capacity of the intending parents). It is worth considering the massive signal failure associated with such an approach—the State prohibits a practice but then a court outlines the principles that are necessary to ensure legal recognition of, and by implication, legitimacy for the practice; Trimmings and Beaumont (n 65) 640–6 (outlining an elaborate regime with central agencies to regulate the international surrogacy market).

111 See generally Satz (n 90).

112 Ibid 128.

113 Ibid 129. See also Bailey (n 92) 735 (expressing concern that ‘reproductive health care is more accessible to women during their contract pregnancies than it is for women during their own pregnancies’).

114 Satz (n 90) 129.

115 Ibid 130.

116 ibid 131.

117 ibid 131.

118 See eg Simmons, K, ‘Reforming the Surrogacy Laws of Australia: Some Thoughts, Considerations and Alternatives’ (2009) 11 FJLR 97, 121Google Scholar (arguing that opponents of commercial surrogacy are ‘acting inconsistently with the feminist idea that women should be free to use their bodies as they please’).

119 There is actually limited research about the experience of surrogate mothers in the context of inter-country surrogacy. See eg Bailey (n 92). There is, however, more research about their experience of surrogate mothers in the context of domestic surrogacy arrangements in developed States. For a discussion of this research, which generally reports positive experiences, see Jadva, V et al. , ‘Surrogacy: The Experiences of Surrogate Mothers’ (2003) 18 Human Reproduction 2196Google Scholar; Ciccarelli, J and Beckman, L, ‘Navigating Rough Waters: An Overview of Psychological Aspects of Surrogacy’ (2005) 61 Journal of Social Sciences 21Google Scholar; van den Akker, O, ‘Genetic and Gestational Surrogate Mothers’ Experience of Surrogacy’ (2003) 21 Journal of Reproductive and Infant Psychology 145Google Scholar; Edelmann, R, ‘Surrogacy: The Psychological Issues’ (2004) 22 Journal of Reproductive and Infant Psychology 123Google Scholar; van den Akker, O, ‘Psychological Trait and State Characteristics, Social Support and Attitudes to the Surrogate Pregnancy and Baby’ (2007) 8 Human Reproduction 2287Google Scholar (noting that surrogate mothers in the UK experience less social support from their own parents and partners than intending mothers which indicates the need for counselling).

120 See Permanent Bureau Preliminary Issues Report (n 1) [40]–[43] (detailing the resolution of several scenarios involving uncertainty with respect to the parentage and nationality of a child).

121 See Re L (Commercial Surrogacy) [2011] EWHC 3146 (Fam), Hedley J, [8] (‘It is also necessary to observe that it is still the case that the most careful and conscientious parents … are still receiving incorrect information’). It is worth noting, for example, that the Australian Embassy in Bangkok and High Commission in New Delhi have actually been engaged in providing information to putative Australian intended parents which refers to Australia's obligations under international law: <http://www.india.embassy.gov.au/ndli/vm_surrogacy.html> accessed 25 March 2013. However, this information does not indicate that this practice may actually be in violation of these obligations.

122 See Keyes, M, ‘Cross-Border Surrogacy Arrangements’ (2012) 26 Australian Journal of Family Law 28Google Scholar; Millbank, J, ‘The New Surrogacy Parentage Laws in Australia: Cautious Regulation of “25 Brick Walls”?’ (2011) 35 MULR 165Google Scholar (both authors suggesting that domestic altruistic surrogacy may be too heavily regulated thereby creating an incentive to enter international commercial surrogacy arrangements).

123 See discussion of the principle of non-discrimination as it applies to gay, lesbian, bisexual and transgender people (n 27).

124 CRC, art 7.

125 See eg Permanent Bureau Preliminary Report (n 1) [40]–[41] (examining States' differing approaches to issues of nationality in this context).

126 It is important to stress that it is not being suggested that the Australian model should be adopted internationally. Indeed the determination of parental status will involve complex legal questions, which vary between jurisdictions. The divergence in the Australian cases does however provide a useful way of illustrating the dilemmas associated with the resolution of the issue where an intended parent has arguably committed a criminal offence but there is a need to ensure that the ‘innocent’ child is not burdened because of the parents' actions.

127 Dudley & Chedi [2011] FamCA 502, at [14]; Finlay & Punyawong [2011] FamCA 503, at [15–16]; Hubert & Juntasa [2011] FamCA 504; Johnson & Chompunut [2011] FamCA 505.

128 Dudley & Chedi, at [37]; Finlay & Punyawong, at [12] and [20]; Hubert & Juntasa, at [18]; Johnson & Chompunut, at [11] and [18].

129 Ellison and Anor & Karanchanit [2012] FamCA 602.

130 This phrase is used in S Appleton, ‘Adoption in the Age of Reproductive Technology’ (2004) UChiLegalF 393, 393.

131 cf Trimmings and Beaumont (n 64) 647 (suggesting that a prohibition on international surrogacy arrangements is ‘doomed to failure’ and thus suggesting that a permissive approach should be adopted provided (a) a surrogate mother does not receive more than her reasonable expenses, which they determine to be 12 months' wages; (b) there is a genetic connection to the child and (c) the treaty would, as a minimum extend to married couples. However, such an approach is problematic for at least three reasons. First, for many States the idea of paying a surrogate the equivalent of 12 months' wages would still amount to a commercial surrogacy and is likely to fall foul of the prohibition against the sale of children under international law. As Ergas notes, ‘one needs to wonder whether palliative measures representing the payment of a de facto salary to the gestational mother for the length of her treatment, pregnancy and post-partum recovery as mere ‘reasonable expenses’ would really pass judicial scrutiny: Ergas (n 6) 90. Second, the emphasis on genetic connection does not account for the possibility and reality that in some cases, due to error or intention, the child born under a surrogacy arrangement has no biological connection with the child. Three, a significant number of non-married couples (or individuals) have a legitimate desire to have a child. Apart from the fact that Trimmings and Beaumont offer no justification for a discriminatory approach, the reality is that under their model the prospect of a black market will remain.