Left in Limbo: The Need to Regulate International Surrogacy Agreements

AuthorRuth Keating
PositionSenior Sophister LLB Candidate, Trinity College Dublin
© 2014 Ruth Keating and Dublin University Law Society
The developing practice of surrogacy poses legal, social and ethical
dilemmas.1 Seeking to regulate such scientific developments as surrogacy
challenges the traditional boundaries of the law. The fundamental problem
is that until now, the approach of states has been to treat parentage as a
matter of fact, rather than as a matter of law.2 As a controversial ‘social
invention,’ surrogacy raises issues regarding legal parentage. Adding to the
difficulty are the often diametrically opposed legal positions of the world’s
nations, particularly in the context of the increasing cross-border nature of
today’s surrogacy agreements. Acting as the facilitator for many rights of
children, it is crucial that legal parentage is not an area of ambiguity.
A surrogate mother is a woman who bears a child on behalf of
another woman, either from her own egg or from the implantation of a
fertilised egg from other woman in her womb.3 A traditional surrogate uses
her own ovum, whereas a gestational surrogate has a fertilised embryo
implanted in her uterus. 4 Both scenarios potentially raise issues of
parentage. It is now possible for a child born through surrogacy to have a
* Senior Sophister LLB Candidate, Trinity College Dublin. The author would like to thank
Professor Brazil and Tara Smyth for their generous advice and comments on this article. Any
mistakes herein are the author's own.
1 Hannah Baker, “Possible Future Instrument on International Surrogacy Arrangements: Are
there ‘Lessons’ to be Learnt from the 1993 Hague Inter-Country Adoption Convention” in
Katarina Trimmings and Paul Beaumont, International Surrogacy Arra ngements (1st ed., Hart
Publishing, 2013).
2 Maja Eriksson, Reproductive F reedom in the Context of Inter national Human Rights and
Humanitarian Law (1st ed., Springer, 1999).
3 Caroline Lindsay-Poulsen, “Surrogacy: The Quest for Legal Recognition Part 1” (2012) ILT.
4 Permanent Bureau, “A Preliminary Report on the Issues Arising from International
Surrogacy Arrangements” Prel Doc No 10 of March 2012, at 32 [hereinafter Preliminary
Report on Surrogacy].
2014] Surrogacy Agreements 65
relationship with any of five individuals: 5 a surrogate mother; 6
commissioning or intending parents;7 an egg donor or a sperm donor.8 This
can increase to six if the surrogate mother is married,9 and even seven
where mitochondrial DNA is used by a third party in the surrogacy
process.10 Thus, owing to these scientific advances, individuals with such a
relationship towards the child can now span geographical borders.
The frequency of international surrogacy agreements has risen. These
have been defined by Anne-Marie Hutchinson as “involving more than one
country of habitual residence, nationality or domicile of the commissioning
parents, donors and the gestational mothers.”11
However, although the the rise of surrogacy represents a relatively
recent phenomenon, the rights which are affected are not.12 Determination
of parentage has the potential to seriously impact a child’s rights. Issues of
parentage have far reaching legal consequences for matters such as
nationality and the acknowledgement of parental responsibility.13 In this
way parentage acts as the bedrock, or catalyst, for many of a child’s rights.
Therefore, the surrogacy debate involves not only theorising about the best
practices for surrogacy, but also dealing with the very real issue of children
being left stateless as a result of countries with conflicting surrogacy
The practice of surrogacy is not set to slow down. Hence, this area of
law warrants close inspection. The growing restrictions on international
adoption in conjunction with the trend of increased family planning have
resulted in couples seeking to conceive at a later stage in their lives through
5 “Surrogacy, Parentage and Citizenship: Ireland in the Wider World” (2013) (3)
spotSurrogac.pdf> (visited 10 December 2013) [hereinafter Oireachtas Spotlight Report].
6 Lindsay-Poulsen, note 3.
7 “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
person(s) may, or may not be, genetically related to the child born as a result of the
arrangement.” Preliminary Report on Surrogacy, note 4, at 33.
8 “The woman who provides her eggs to be used by other person(s) to conceive a child.” Ibid.
9 “The man who provides his sperm to be used by other person(s) to conceive a child.” Ibid.
10 Emma Spikings, Jon Alderson and Justin St John, “Transmission of Mitochondrial DNA
Following Assisted Reproduction and Nuclear Transfer” (2006) 12(4) HRU 401.
11 Anne-Marie Hutchinson, “The Hague Convention on Surrogacy: Should we agree to
disagree?” (October 2012) ABA Section of Family Law 2012 Fall CLE Conference
Philadelphia, (visited 21
November 2013).
13Hague Conference Website
(visited 20 October 2013).
66 Trinity College Law Review [Vol 17
surrogacy.14 This development coupled with the absence of an international
regulatory scheme to accompany this growth of cross-border surrogacy,
has contributed to a boom.15 Additional difficulties arise when a child is
born as a result of an international or inter-country surrogacy arrangement
implicating several states, thus illustrating the urgent need for regulation.
When writing in the different context of inter-country adoption Hans
van Loon notes “[i]t manifests our shrinking world, in which human lives,
activities and interests become more and more interwoven, and over ever
larger distances.”16 In this shrinking world the challenges to creating an
effective regulatory framework for inter-country surrogacy are
considerable. Any law must appreciate the differing current legal
approaches of states, as well as the differing perspectives of both sender17
and receiver states.18 Currently there is no instrument which regulates the
recognition of international surrogacy agreements where the sender state
has held through administrative or judicial process that the agreement was
lawful instead the process must be initiated de novo in the commissioning
parents’ country of origin.19
The central issue of how to regulate international surrogacy
arrangements will be the focus of this article. Chapter one will analyse the
differing approaches which have been adopted by three states in regulating,
banning and leaving surrogacy agreements unregulated. The countries
which will be discussed are the United Kingdom, Ireland and France.
Chapter two will then reflect on the reasons why the current legal vacuum
is proving inadequate for dealing with this emerging problem and expose
the barriers to successful regulation. Finally, Chapter three will consider
the proposed Hague Convention’s solution to the problem of cross-border
surrogacy agreements and the work of the Permanent Bureau to date.
14 Lindsay-Poulsen, note 3. Here Lindsay-Poulsen outlines that there is a trend of women
delaying pregnancy until their thirties.
15 Hutchison, note 11.
16 Johannes Hendrik Albert (Hans) van Loon, “International Co-operation and Protection of
Children with Regard to Intercountry Adoption " (1993) 244 Recueil des cours 195, at [1].
17 The sender country is the country of origin of the surrogate mother. They are typified by
high birth rates and are typically underdeveloped or developing nations. Definition adapted
from definition for sender countries in the context of adoption taken from Notesong Srisopark
Thompson, “Hague is Enough?: A Call for More Protective, Uniform Law Guiding
International Adoptions” (2004) 22 Wis Int’l LJ 441.
18 The receiver country is the country of origin of the commissioning parents. They are
typified by lower birth rates and are typically economically stable. Definition adapted from
definition for receiving countries in the context of adoption taken from ibid.
19 Hutchison, note 11.
2014] Surrogacy Agreements 67
I. The Core Problem: The Differing Approaches of States
The growth of international surrogacy agreements raises serious issues
relating to parentage and thus citizenship.20 This results in complex issues
both in terms of private international law and child protection. 21 The
principal issue is the frequent inability of the ‘receiving State’ to legally
recognise the child due to the often diverging approaches of different
The problems arising from the legal vacuum surrounding present day
international surrogacy were similarly evident in the late 1980s and early
1990s in the context of international adoption. The Van Loon Report of
1990 cites the sale and trafficking of children as one of the driving forces
behind the exploration of how best to regulate international adoption.22A
comparable danger regarding surrogacy is evidenced by several cases
documenting the sale of both women and children for its purpose.23 In both
sets of circumstances the potential for exploitation is great.
However, fundamental differences between inter-country adoption
and inter-country surrogacy agreements do exist. These differences will
determine whether it is desirable to regulate international surrogacy and,
crucially, whether it is feasible to do so.24 In the context of adoption the
Permanent Bureau made the point that competent authorities and
accredited bodies are faced with the ethical need to continually align their
actions with the justification for inter-country adoption - to seek a family
for a child.25 Therefore, it can be argued that the regulation of inter-country
adoption is strongly linked to the best interests of the child and the
vindication of their rights.26Thus, the argument can be made that while
20 Oireachtas Spotlight Report, note 5.
21 Concluding Remarkss and Recommendations of the Council on General Affairs and Policy
of the Hague Conference,” 3-5 April 2010, at 3.
22 Johannes Hendrik Albert (Hans) van Loon, “Report on Inter-Country Adoption” (1990) Prel
Doc No 1, Proceedings of the Seventh Session, Tome II, at 11-119.
23 Ruth Institute Blog, 10 August 2011,
admits-guilt-in-baby-selling-ring/> (visited 23 September 2013).
24 Baker, note 1.
25 Preamble to the Hague Convention on Protection of Children and Co-operation in Respect
of Inter-Country Adoption 1993 [hereinafter the Hague Convention on Adoption].
26 Draft “Accreditation and Adoption Accredited Bodies: General Principles and Guide to
Good Practice,” Guide No 2 under the 1993 Convention, drawn up by the Permanent Bureau
(Prel Doc No 2 of May 2010), at [7].
68 Trinity College Law Review [Vol 17
adoption is a process very much focused on the interests of the child,
surrogacy in fact serves the pro-creative desires of the parents. The analysis
of the actual processes of adoption compared with surrogacy, could
potentially lead to the Concluding Remarks that surrogacy is not justified
by reference to the child’s best interests.
This concern brings to the fore the issue of ethics which plagues
surrogacy. It can be argued that surrogacy is such a harmful practice that it
should not be facilitated in any shape or form.27 Some maintain that
surrogacy is objectionable ethically, because it reduces children to objects,
has the potential to exploit both women and children, and because it
purportedly sanctions female detachment during pregnancy.28 However,
arguments proposing a bright line distinction between regulating adoption
and surrogacy ignore the reality of the situation the global community now
finds itself in. The ability to regulate these agreements within some
international framework does not represent an active support for surrogacy
agreements, but rather an acknowledgement that reality demands some
minimum standards and procedures be agreed upon should the issue arise.
Arguably, law’s purpose is to set minimum standards for behaviour.
Ethics by contrast often aims to achieve a model level of behaviour, which
could also be characterised as ideals. Even though there does at times exist
a symbiotic type of relationship between law and ethics, this does not mean
that the two are the same. The moral-philosophical issues of motherhood
and family represent complex ideas and are not set to be readily resolved.
However, pretending that something is not happening is not a legal
solution. Therefore, this article aims to analyse potential legal solutions and
their likelihood of success - it is not an exercise in determining if surrogacy
should be considered ethical in all circumstances. Thus, the focus of the
next section will be to examine the difficulties which have been
encountered by different jurisdictions in regulating surrogacy, particularly
in an international context. The analysis of three different domestic
approaches to surrogacy will reveal the need for pan-country regulation.
27 Inge Clissmann and Ciara McMenamin, “Sound Regulation of Surrogacy is Imperative”
The Irish Times 9 December 2013. Furthermore it is also possible that limiting the child’s
right to know the identity of someone who was an integral part of their birth, violates Article
28 Scott Rae, Moral Choices: An Introduction to Ethics (2nd ed., Zondervan Publishing House,
2014] Surrogacy Agreements 69
A. The United Kingdom: A Regulated Framework for Surrogacy
Surrogacy regulation in the UK has its roots in two key legal landmarks.
The first event which provoked the regulation of surrogacy in the UK was
the Warnock Committee which reported to Parliament in 1984. 29 The
second and more influential one was the case of Re C (A minor), or what
was more widely referred to as ‘the Baby Cotton case.’30 Re C (A minor)
received a considerable amount of public attention. The judge ruled that the
surrogate, Kim Cotton, had voluntarily relinquished any legal rights she
had to the child, and thus the child was given to the commissioning
parents. As a result, Parliament was compelled to act in order to fill what
was considered a blank space in the law, thus leading to the creation of the
Surrogacy Arrangements Act 1985. This case and the subsequent
legislation are an interesting microcosm of what is now happening on the
international stage.
In the UK there is no support for commercial surrogacy; instead, the
framework merely allows for circumstances of altruistic surrogacy. 31
Parenthood can be transferred to commissioning parents by a parental
order,32 the legal mother at birth remaining the surrogate mother. 33 A
judicial order will only be made when the conditions laid down in section
54 of the Human Fertilisation and Embryology Act 2008 are conformed to.
There are over twenty conditions to conform with. 34 These include,
amongst others, that at least one of the applicant’s gametes have been used
in the process, 35 the applicants must be in some sort of enduring
relationship,36 an application must be made within six months of the birth37
and the surrogate must have given their consent freely to the agreement.38
In this way the UK conforms to one widely accepted norm of surrogacy
that motherhood lies with the birth mother until it is transferred.
It is important to note that even when a country such as the UK has a
regulated framework permitting surrogacy, international surrogacy
29 Dame Mary Warnock, “Report of the Committee of Inquiry into Human Fertilisation and
Embryology” 1984 Department of Health and Social Security.
30 Re C (A minor) (Wardship: Surr ogacy) [1985] FLR 846.
31 “Surrogacy can provide a vital opportunity, where a woman is unable to bear a child
herself, for a couple to have a child that is genetically related to one or both of them.” Impact
Assessment of the Human Fertilisation and Embryology (Parental Order) Regulations, 2010.
32 The Human Fertilisation and Embryology Act, 2008, s. 54 [hereinafter HFE Act]
33 HFE Act, s. 33; The Ampthill Peera ge [1977] AC 547.
34 HFE Act, s. 54(1) through to 54(11).
35 HFE Act, s. 54(1)(b).
36 HFE Act s 54(2).
37 HFE Act s 54(3).
38 HFE Act s 54(6)(a).
70 Trinity College Law Review [Vol 17
agreements still result in a great deal of confusion and difficulty. The UK
still grapples with issues of parenthood and recognition of foreign birth
certificates,39 a trend which is illustrated in several cases. In X and Y
(Foreign Surrogacy), Ukrainian and English law occupied diametrically
opposed positions, with Ukrainian law assigning parentage as agreed to the
commissioning parents.40 This left the parents in a situation of uncertainty
and the children legally stateless; however, they were eventually allowed to
enter the UK. X and Y (Foreign Surrogacy) shows that even where
countries have implemented domestic legislation, foreign surrogacy
agreements present new problems. In cases such as this, states still rely on
conflicts of law rules, potentially resulting in decisions which find their
basis in facts and discretion, rather than in concrete and consistent legal
In the case of Re G (Surrogacy: Foreign Domicile) it took nine
months to resolve the issue of parentage.41 The problem was that neither of
the commissioning parents were domiciled in the UK. The baby had been
conceived in the UK through surrogacy, but the couple themselves were of
Turkish origin. Here an alternative solution had to be found through
international adoption law.42 Although legislation regarding adoption may
at times offer a solution to difficult situations involving surrogacy, this is
not done without the expense of clarity. If a piece of legislation is designed
to deal with a certain set of circumstances, it cannot be stretched to fit
another scenario without forcing the language and intent of that statute.
Therefore, this system of resolving cases results in incredible delay,
effectively suspending parentage. It does not adequately protect the best
interests of the child, which it seeks to do.
The paramountcy of the concern for the child is also reflected in the
approach the UK have taken regarding commercial surrogacy. While the
UK regime allows for ‘reasonable expenses,’ it does not extend to an
outright permission of commercial surrogacy.43 Despite this firm stance,
cases such as Re L (A Minor) highlight that the absolutist position based on
public policy must yield to the primordial considerations of the rights of
the child.44 This tendency demonstrates this desire to protect the rights of
the child will represent a significant basis on which to build consensus in
39 Trimmings and Beaumont, note 1, at 369.
40 X and Y (Foreign Surr ogacy) [2008] EWHC 3030 (Fam).
41 Re G (Sur rogacy: Foreign Domicile) [2007] EWCH 2814 (Fam).
42 Adoption and Children Act, 2002, s. 84.
43 HFE Act, s. 54(8).
44 Re L (A Minor) [2010] EWHC 3146.
2014] Surrogacy Agreements 71
order to regulate the rise of surrogacy on an international scale and even
commercial context.
B. Ireland: An Unregulated Example of Surrogacy
In Ireland there is no legislation governing assisted reproduction or
surrogacy. As such, surrogacy agreements are not readily enforceable in
Ireland, as they are in many ways considered to violate principles of public
policy.45 Controversy also surrounded a paper published in 2009 by Eric
Sills, Alicia Walsh and David Walsh documenting the first Irish case of
surrogacy.46 Before this paper there had been little to no discussion of the
real life practice of surrogacy in Ireland, since the silence from the Irish
legislature has led many to believe the surrogacy simply does not happen in
Ireland.47 Therefore it is only in recent times that the extent of the practice
has really come to light. The Commission on Assisted Human
Reproduction published a report in 2005 which has to date acted as the
only genuine proposal at regulating the area of surrogacy.48 Crucially, the
Report recommended that in the context of surrogacy the legal mother of a
child born should be the commissioning mother if she had provided the
eggs. However, nothing has come of the report and notably its
recommendations have not been implemented in legislation, despite being
available for several years.
Therefore, in the absence of any particular law in the area the issue of
parentage must currently be raised in an application before the courts under
sections 35 38 of the Status of Children Act 1987.49 Under s.38, blood
tests can be brought before the court as evidence in order to determine
parentage. Notably all orders are subject to the welfare principle.50 Even in
the absence of guidance in this area in vitro fertilisation and embryo
donation continue to be carried out in Ireland. 51 To fill this void the
45 Deirdre Madden, “The Challenge of Surrogacy in Ireland” (1996) 14 ILT 34.
46 Erich Scott Sills, Alicia Walsh and David Walsh, “First Irish Pregnancies after IVF with
Gestational Carrier” (2009) 102 Irish Medical Journal, at 56-58.
47 Eric Scott Sill and Clifford Healy, “Building Irish Families through Surrogacy: Medical
and Judicial Issues For Advanced Reproductive Technologies” (2008) Reproductive Health
(visited 3 December 2013).
48 Report of the Commission on Assisted Human Reproduction (2005), at 20-28,
49 Status of Children Act, 1987, ss. 35 - 38. See also JPD v MG [1991] ILRM 217.
51 Report of the Commission on Assisted Human Reproduction 20-28 (2005).
(visited 12 November 2013).
72 Trinity College Law Review [Vol 17
Medical Council of Ireland has issued guidelines;52 however, they do not
carry the force of law.
The case of MR v An t-Ard Chlaraitheoir demonstrates the
uncertainty which can be generated by failure to lay out any guidelines in
this area.53 The facts of MR could scarcely have been less contentious. In
MR twins had been carried to term by the commissioning mother’s sister,
the commissioning mother being the genetic mother. On birth the Chief
Registrar refused to allow any exception to the registration policy. Abbott J
ultimately found for the applicants, referencing that the Status of Children
Act, 1987 allows for blood testing to ascertain maternity. In addition,
Abbott J found the blood links argument, advanced in both N v HSE54 and
JMcD v PL,55 persuasive, thus demonstrating the development of a line of
jurisprudence acknowledging the importance of the blood link. Therefore,
the most important aspect of MR can be considered to be the endorsement
of this link between DNA and establishing parenthood. However, MR is on
appeal to the Supreme Court, leaving this area again shrouded in doubt.
Currently the only guidance in Ireland relevant to international
surrogacy agreements are guidelines issued by the Department of Justice in
February 2012.56 Consequently, it is still the case that people cannot agree
to privately transfer parental status.57 As a result, notwithstanding the
Department of Justice guidelines, there is no special procedure for
international surrogacy agreements.58 Prior to the guidelines issued in 2012,
nineteen families per year were said to be in contact with the Department
of Foreign Affairs in order to obtain travel documents.59 Therefore, in
circumstances such as these, it may take several applications before the
courts to determine parentage, delaying return for these families and the
children involved.60
52 Medical Council, Guide to Pr ofessional Conduct and Ethics (7th ed., Dublin, Medical
Council 2009), at 20-21.
53 MR v An t-Ard Chlara itheoir [2013] IEHC 91 [hereinafter MR].
54 N v HSE [2006] 4 IR 374.
55 JMcD v PL [2010] 2 IR 199.
56 Report on the Third Programme of Law Reform 2008-2014 (LRC 86-2007), Project 31,
Legal Aspects of Assisted Human Reproduction.
57 Department of Justice, “Citizenship, Parentage, Guardianship and Travel Document issues
in Relation to Children born as a result of Surrogacy Arrangements entered into outside the
20Guidance%20Document.pdf> (21 February 2013).
58 Ibid.
59 739, Dáil Debates, col 53 (21 July 2011).
60 Trimmings and Beaumont, note 1, at 230.
2014] Surrogacy Agreements 73
Regulation is proposed through the Children and Family
Relationships Bill 2013. 61 The Bill reinforces the notion that the best
interests of the child are paramount in considering decisions on custody,
access and guardianship. Crucially, the Bill in its current form would
permit non-commercial surrogacy arrangements. However, it would be
prohibited to advertise surrogacy services or to persuade women to act as
surrogates. The issue of parentage will also be clarified, allowing men and
women to apply for declarations of parentage where children have been
born through the use of their own genetic material. The Bill does not
appear to directly address the issue of international surrogacy
arrangements, an omission which is notable considering many surrogacy
arrangements would fall into this category. Under proposed Bill, it is left to
the Department of Health to formulate a policy which would be practically
implementable. 62 Not only can one be critical of the fact that the
Department of Health is to be charged with such a duty, but it is also
doubtful that the Department is in a position to resolve issues concerning
inter-country surrogacy. Thus, a large number of cases will still be left
without any possibility of resolution by way of a legal instrument.
Ireland’s current stance raises serious concerns in light of the rise of
international surrogacy agreements. Ireland clings to the myth that one set
of legal rules can govern all parentage issues, despite differing
circumstances of conception and birth. As a result of this and the decision
of MR, issues of parentage are still in a state of flux. The case of MR itself
is hugely problematic. Linking maternity to the egg in the same way that
paternity is linked to genetics may result in huge difficulty where an egg
donor is used. From an international perspective this also brings Ireland
somewhat out of line with the general presumption of mater semper certa
est. Equally, it can be argued that creating a framework in which
motherhood can be effectively suspended until DNA testing is not in the
best interests of the child. It is hoped that the final Act regulating surrogacy
will offer greater clarity and clear up these potentially troublesome issues.
However, Ireland’s lack of concern for inter-country surrogacy
arrangements which has been exhibited so far, risks undermining the
success of any final legislation seeking to regulate surrogacy arrangements
in any meaningful way.
61 Children and Family Relationships Bill 2013, Briefing Note
0141113.pdf> (21 February 2013).
62 Ibid.
74 Trinity College Law Review [Vol 17
C. France: Surrogacy Banned
In France surrogacy is both prohibited under criminal law 63 and void in the
civil sphere.64 This strong stance has developed in France as a result of the
Cour de Cassation decision in 1991.65 Here the court robustly upheld the
notion that the body must not be bought, rented or sold in anyway;
surrogacy offending this principle. As such it is an offence in the criminal
law to conceal or simulate birth and surrogacy falls under this offence.66
The commissioning parents would be deemed to be simulating a birth, as
they would seek to claim the resulting child as their own despite no
pregnancy themselves. Meanwhile, the surrogate mother would be deemed
to be concealing a birth. The severity of the punishment - imprisonment of
up to three years or of a fine of up to €45,000 - reflects the fact that
surrogacy is considered to be repugnant to French policy. Furthermore, any
medically assisted reproduction activities which would not be deemed
acceptable under the Public Health Code are punishable by a maximum of
five years imprisonment and a fine of maximum €75,000.67
It is interesting to note the law in this area is named loi relative au
respect du corps humain.68As pointed out by Perreau-Saussine and Sauvage
the translation of this title is “Act concerning respect for the human
body.69 Therefore, even in the language of the law itself, France has
placed bioethics very much at the centre of surrogacy regulation. In this
way public policy has been elevated to being of central importance. There
are two essential aspects of public policy for France in this regard. The first
is the principle of l’indisponibilité du corps humain.70 This concept would
preclude any arrangement by individuals whereby the bodily services of an
individual are made the subject of a private agreement, in this case a
surrogacy contract. The second principle is ‘l’indisponibilité de l’état des
personnes.’71 Consequently, this principle would be offended by the state
allowing surrogacy. The facilitation of such an agreement would amount to
the facilitation of the private transfer of a child’s parentage and thus would
63 Under a decision by the Cour de cassation (France’s highest court), (Cass Ass plén, 31 May
1991). This prohibition was confirmed in the bioethics law of 1994, and is codified in article
16-7 of French Civil Code (“Civil Code”). Article 16-9 of the Civil Code makes this a
prohibition of public order.
64 Article 16-7 of French Civil Code.
65 Cour de Cassation (Cass Ass plén, 31 May 1991).
66 Article 227-13 of the French Penal Code.
67 Article 511-24 of the Penal Code.
68 Loi relative au respect du corps humain, No 94-653 29 July 1994.
69 Trimmings and Beaumont, note 1, at 120.
70 The human body cannot be made the subject of agreements by private individuals.
71 The legal status of persons cannot be made the subject of agreements by private individuals.
2014] Surrogacy Agreements 75
violate the concept of the legal status of person not being subject to private
An application must be made to the French consulate to register the
foreign birth judgment or the foreign birth certificate.72 This registration
may be refused if the record from the foreign country cannot be considered
truthful.73 In the context of international surrogacy contracts, by virtue of
Article 47 of the Civil Code, records from the country of origin can be
produced to establish the fact of parentage.74
Therefore, the French authorities must accept foreign civil
certificates unless there is evidence to the contrary. Enforcing a foreign
judgment can be denied based on three grounds which were laid down in
the Cornelissen case. 75 These three reasons include the lack of a
satisfactory connection between the case and the judge in the foreign state
who was seised with the issue, the purpose of the foreign judgment being
to thwart French law, the judgment being contrary to public policy. It is the
last two grounds which form the basis for rejecting an application to
register a birth certificate obtained through surrogacy.
Despite France’s ‘on paper’ anti-surrogacy stance, the reality is much
more complex. The French Cour de cassation has held it to be contrary to
public policy to give effect to any foreign surrogacy arrangement. 76
However, in very few of the estimated 150-200 cases of children born
abroad to French couples through surrogacy, parentage was denied.77 As
such there exists a real gap between the law which is laid down in
judgments as well as legislation, and the precedent which exists in practice.
In addition, in two judgments the French courts have given the strong
message that the primary consideration will be the best interests of the
child.78 In the Conseil d’Etat case an Indian mother legally and voluntarily
gave the child to its genetic father and a laissez-passer was granted to the
child to allow one-way entrance.79 This decision was based first on the
truthfulness presumption in Article 47 and secondly on the best interests of
72 Articles 48 and 49 of the Civil Code.
73 Article 47 of the Civil Code.
74 Article 47 of the Civil Code. Here there exists a presumption that foreign records detailing
the civil status of French persons are considered to be truthful. This of course is a rebuttable
presumption where facts show that the records are indeed not truthful.
75 Cour de cassation, CH civile 1, 20 février 2007, 05-14.082, Publié au bulletin.
76 Cour de cassation, CH civile 1, 6 avril 2011, 09-66.486 (Arrêts Nos 369, 370, 371), Publié
au bulletin; Rev Crit DIP 2011.722, P Hamje; Gaz Pal 12 mai 2011, at 13; X Labbé, ‘La
gestation pour autrui devant la Cour de cassation,’ (Dalloz, 2011) at 1064.
77 Trimmings and Beaumont, note 1, at 119.
78 Conseil d’Etat, 4 Mai 2011, n˚348778.
79 A laissez-passer is typically given in exceptional circumstances where there exists the
presumption that the person is a French national. Decree No 2004-1543 of December 2004.
76 Trinity College Law Review [Vol 17
the child.80 The French courts have also reached the opposite Concluding
Remarks, yet on basis of the same rationale - that of the child’s best
interests. In the Cour de Cassation case, surrogacy agreements involving
two American orders were refused enforcement.81 The decisive point was
that the children were born in America and would hence not be left
stateless by an adverse ruling.
These two decisions in conjunction embody the potential to start a
dialogue.82 Both bring into focus that the child’s best interests and therefore
the country of birth’s citizenship laws will have a major impact on any
decisions regarding parentage.
The French approach is now a confusing one, on foot of the
dichotomy between the law as it promulgated and the ‘law’ which is
developing in practice. On a purely national level, were three French
nationals to enter into a surrogacy agreement, parentage would not be
transferred to the commissioning parents. However, once the reality of
international arrangements comes into play, French courts have been
willing to dilute their strict stance and recognise that a child, left stateless
and parentless by an agreement, represents a fundamentally distinct legal
Concluding Remarks
In light of the previous analysis, a strong trend emerges - that of a
dichotomy between the written law and actual practices in the area. States
have failed to address the fact that these arrangements happen across
borders and inconsistent doctrine and cases are the result. At the centre of
these disputes is the need to protect the rights of the child guaranteed under
Article 3, paragraph 1 of the United Nations Convention on the Rights of
the Child. No matter the domestic regime in place regarding surrogacy,
whether permitted or not, states are continually faced with these types of
arrangements. A strong shared concern emerges across the board that of
the best interests of the child. This central concern must be at the centre of
any debate regarding the regulation of international surrogacy agreements.
80 Conseil d’Etat, 4 Mai 2011, n˚348778.
81 Cour de cassation, civile, Chambre civile 1, 6 avril 2011, 09-66.486 (Arrêts Nos 369, 370,
371), Publié au bulletin; Rev Crit DIP 2011.722, P Hamje; Gaz Pal 12 mai 2011, at 13; X
Labbé, ‘La gestation pour autrui devant la Cour de cassation,’ Dalloz, 2011, at 1064.
82 Trimmings and Beaumont, note 1, at 120.
2014] Surrogacy Agreements 77
II. The Need to Regulate
International surrogacy is now a popular alternative for creating a family
and therefore domestic control over this developing area is weakening.83 In
fact, in an increasingly globalised world the problems associated with
international surrogacy agreements are not set to decrease and will only be
exacerbated further by the rise of ‘DIY surrogacy arrangements’ conducted
over the internet. 84 This chapter will analyse whether international
regulation is feasible and whether it is desirable. These issues will be
considered by evaluating whether the current lack of regulation has
resulted in such difficulties that regulation is required. The latter part of
this chapter will discuss potential hurdles faced when attempting to
regulate inter-country surrogacy arrangements.
A. The Existing Regime is Inadequate to Deal with the Rising Popularity of
International Surrogacy Agreements
Debating surrogacy regulation implies that there is a choice to be made,
whereas the truth is that the negative ramifications of no regulation on the
global stage can already be felt. There are numerous examples from
various states of statelessness and neglect.85 Therefore the aim of regulation
would not to be to seek absolute conformity, but instead to ensure an
adequate minimum standard to ensure that the rights of vulnerable parties
are protected. Under the current status quo children are left vulnerable by
uncertain principles in relation to both nationality and parentage - either
definitely or during the protracted period in which countries seek to resolve
83 Pamela Laufer-Ukeles, “Mothering for Money: Regulating Commercial Intimacy,
Surrogacy, Adoption” (2003) 88(4) Ind LJ.
84 Also notable in this regard is the English case of CW v NT and another [2011] EWHC 33.
The birth mother ultimately changed her mind and this resulted in a legal dispute between the
birth mother and the commissioning parents. The case is of interest because the arrangement
between the parties was greatly complicated by the fact that it was carried out over the
internet. The informal nature of the agreement made it more difficult to determine the
intentions of the parties. The court ultimately decided that the child should stay with the birth
mother. The case is an interesting illustration of an increasingly globalised world, where
technology increasingly diminishes and reduces the importance of old geographical borders.
85 Prel Doc No 11 of March 2011 for the attention of the Council of April 2011 on General
Affairs and Policy of the Conference (available on the Hague Conference website at
> under “Work in Progress” then “General Affairs”). See Prel Doc No
11 for a detailed background to work in this field, at 3-4.
78 Trinity College Law Review [Vol 17
the question at a domestic level.86 International law in this area was never
created to deal with this particular problem. Hence, the potential
international instruments available within the context of international
family law are unsuitable for application to international surrogacy
Often the language found in these instruments precludes their use in
this context, or to do so would be to stretch the language too far beyond the
contemplation of the drafters. The Hague Inter-Country Adoption
Convention 1993 might seem suitable.87 However, several of its aspects
appear to actively preclude the Convention’s use for the purpose of
regulating international surrogacy agreements and are difficult to reconcile
with the manner of how surrogacy agreements are effected in practise.
Article 4(c)(3) states that commercial adoptions are prohibited under the
Convention. 88 This provision would likely prove a source of great
contention were it to be altered for commercial surrogacy. In addition
Article 4(c)(4) states that the birth mother’s consent is enforceable only
after the birth of the child.89 The issue with the application of this principle
is that the birth mother’s consent will commonly be given before the
child’s birth and even the child’s conception. The central problem raised is
that consent is a essential part of the Convention. An amendment allowing
for consent to be given before birth would appear to fundamentally and
thus radically alter the spirit of the 1993 Convention. Furthermore, Article
4(b) sets out the subsidiary principle, arguably totally at odds with the idea
of international surrogacy agreements. 90 Finally, Article 29 precludes
contact between prospective adopters and the child’s parents.91 Given the
actual mechanics of a surrogacy agreement, although it is not theoretically
impossible to respect Article 29, in practice the reproduction process will
often mean that there will be contact between commissioning parents and
surrogates before birth.
Other international instruments also contain provisions which would
appear to preclude their adaptation to this novel context. The Convention
on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-
operation in respect of Parental Responsibility and Measures for the
86 Ibid., at Section IV(a).
87 The Hague Convention on Protection of Children and Cooperation in Respect of
Intercountry Adoption, 29 May 1993, 32 1LM 1134, at 1139 [hereinafter Hague Convention
on Adoption].
88 Article 4(c)(3), Hague Convention on Adoption.
89 Article 4(c)(4), Hague Convention on Adoption.
90 Article 4(b), Hague Convention on Adoption.
91 Article 29, Hague Convention on Adoption
2014] Surrogacy Agreements 79
Protection of Children has received broad acceptance.92 However the issue
with its application is that Article 4(a) states that establishing contested
parent-child relationship is beyond the scope of the Convention.93 Another
potentially interesting avenue could be to use the Brussels II Revised
Regulation.94 Brussels II sets out rules on jurisdiction, recognition and
enforcement of judgments in matrimonial matters and parental
responsibility for children. However, there are two significant obstacles to
the use of Brussels II with regards to this context. The first is that even in
theory Brussels II would only offer a partial solution, namely as the
Regulation is only binding on most states of the European Union, 95 while
in fact surrogacy is a truly global phenomenon. Not only would using the
regulation in this way only offer a partial solution, but it would also
exclude many of the states which could be classified as sender states.
Moreover, the regulation’s language can probably be construed to exclude
its use in this setting. The tenth preamble outlines that it is not the
responsibility of the Regulation to resolve issues of parentage.96 As such,
although resolving issues of parental responsibility can be of great
assistance in resolving disputes centred on surrogacy, issues of parentage
will inevitably arise. Consequently, looking at the potential of the
Regulation both in terms of its scope and content, both elements can only
be partially resolved by Brussels II.
In light of both chapter one of this article and the above discussion,
the argument for a new system of regulation for international surrogacy
agreements gains currency. The current regime of no inter-country
regulation has led to serious difficulties, both in terms of domestic policy
and for the individual families concerned. Any instruments currently in
operation which could potentially be used in this context would have to be
revolutionised to the point of derogating some of their core principles in
order to be truly applicable to and reflective of the reality of surrogacy
agreements. As such, the combination of the inadequacy of current
instruments to deal with this problem, coupled with the difficulties which
92 The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-
operation in respect of Parental Responsibility and Measures for the Protection of Children,
19 October 1996.
93 Ibid., Article 4(a).
94 Brussels II Regulation (EC) No 2201/2003 [hereinafter Brussels II].
95 Ulrich Magnus and Peter Mankowski, Vol 2: Brussels II bis Regulation’ Vol II of the Series
European Commentaries on Private International Law’ (1st ed., European Law Publishers,
96 “In addition it does not apply to the establishment of parenthood, since this is a different
matter from the attribution of parental responsibility, nor to other questions linked to the
status of persons.” Tenth Preamble of Brussels II.
80 Trinity College Law Review [Vol 17
can be observed under the status quo, necessitate a new form of regulation
to deal with this pressing, emerging problem.
B. Barriers to Regulation
One of the greatest challenges to regulating surrogacy is the argument that
the human body is deserving of special care and status meaning it cannot
be bought, rented or sold - as this would fundamentally violate human
dignity.97 This belief permeates domestic debates, which in turn ripple out
into the international legal order. The argument, constructed in a similar
manner to those aiming to prevent the regulation of prostitution, centres
around an inextricable link between the body and human dignity: any
commodification of the body should not be encouraged and regulation
should thus be prevented because it indirectly encourages this
commodification. 98 It is interesting to note that the moral concerns
regarding the potential connection between surrogacy and exploitation
were also present to an extent in the context of international adoption.
Nevertheless, it was in particular these moral issues which had sparked
regulation in form of the Hague Convention.99 The regulation subsequently
entailed the actual decline of inter-country adoptions worldwide.100 This is
because under stricter guidelines the legal ‘wild west’ of sender states is
reduced and the attractiveness of looser restrictions is diminished.
Moreover, owing to the involvement of an innocent party without
any choice at all in the matter - the child - arguing solely in terms of ethical
rhetoric perhaps fails to acknowledge the actual, real moral implications of
failing to regulate this area. Surrogacy agreements happen globally with or
without regulation, the result being that vulnerable parties and their rights
are left exposed.
Many argue that regulation on an international level will prove very
difficult, if not impossible. Commentators such as Iris Leibowitz-Dori and
Angie McEwen argue that the differing standards of regulation at the
97Cynthia Cohen, Selling Bits and Pieces of Humans to Make Babies: The Gift of the Magi
Revisited” (1999) 24 J Med Phil 288.
98 Jean Sera, “Surrogacy and Prostitution: A Comparative Analysis” (1997) 5 Am UJ Gender
and L 315. Here Sera notes that both surrogacy and prostitution impact on one gender
disproportionately and thus this must form part of the debate. See also Jennifer Rimm,
Comment, Booming Baby Business: Regulating Commercial Surrogacy in India” (2009) 30
U PA J Int’l L 1429. Rimm observes that “[o]pponents of surrogacy liken these arrangements
to prostitution, paid adoptions, or organ sales.”
99 Johannes Hendrik Albert (Hans) van Loon, “Report on Intercountry Adoption” (1990) Prel
Doc No 1, Proceedings of the Seventh Session, Tome II, at 11-119.
100 Hutchison, note 11.
2014] Surrogacy Agreements 81
domestic level imply that international regulation is not possible at this
juncture.101 The two major reasons behind these Concluding Remarks are
lack of consensus regarding the ethical and legal issues surrounding
surrogacy together with a lack of political will to enforce any agreement.102
Kristiana Brugger argues that despite regulation being the ideal situation,
the reality of the disparity between legal positions in this area make
regulation practically impossible.103 However, Brugger further is of the
opinion that the greatest challenge perhaps lies in the first step of garnering
the necessary political will on a domestic level to make regulation possible.
Moreover, this is aggravated by the fact that the high probability of such
regulation clashing in part with domestic law further reduces the likelihood
of signatories. This reveals the very real issue that it is not sufficient to
have an instrument which is not truly accepted and hence not effective. A
human rights based instrument could perhaps have a greater chance of
gaining support. However, the problem is that such instruments are usually
more focused on espousing ideals, rather than real standards for conduct.104
Given the rights implicated by surrogacy, it is important that these
standards are not fictional, as such mere technical and illusory compliance
will not be enough.105
Arguably, the involvement of the child is a strong justification for
regulating this area. Through an internationally recognised instrument the
international community can ensure that both commissioning parents and
surrogates have some degree of certainty in advance of these arrangements
and thus are protected to the degree to which the international community
feels is suitable.106
101 Iris Leibowitz-Dori, “Womb for Rent: The Future of International Trade in Surrogacy”
(1997) 6 Minn J Global Trade 329, at 330-31; Angie Godwin McEwen, “Note, So You’re
Having Another Woman’s Baby: Economics and Exploitation in Gestational Surrogacy”
(1999) 32 Vand J Transnat’l L 271, at 303-04.
102 Kristiana Brugger, International Law in the Gestational Surrogacy Debate, (2012) 35
Fodrham Int’l LJ 665, at 676.
103 Ibid.
104 Usha Rengachary Smerdon, “Crossing Bodies, Crossing Borders: International Surrogacy
Between the United States and India” (2008) 39 Cumb L Rev 15, at 82 discussing scholars in
who believe that these human rights based instruments are typically more concerned with
laying down ideals as opposed to standards which are truly effective.
105 Kal Raustiala, “Form and Substance in International Agreements” (2005) 99 Am J Int’l L
581, at 610.
106 Eileen Smith-Cavros, “Fertility and Inequality Across Borders: Assisted Reproductive
Technology and Globalization’ (2010) 4 Soc Compass 466, at 474; Casey Humbyrd, “Fair
Trade International Surrogacy” (2009) 9 Developing World Bioethics 111, at 116.
82 Trinity College Law Review [Vol 17
However, of the greatest importance is that any resulting children are
not punished for the circumstances of their birth.107 Regulation need not be
detailed and all encompassing. Rather, in the context of surrogacy these
legal standards should be treated as baselines to be met. In this way
regulation may be viewed not as an entirely new addition to the
international legal order, but instead a way of ensuring that other rights
which may be viewed as old and established, are not impinged on by virtue
of developing scientific method. It is the acknowledgement that new
developments must not affect old rights.
Concluding Remarks
The status quo is deeply inadequate in dealing with this emerging problem,
and together with the inapplicability of currently existing instruments it can
be seen that regulation is desirable. The barriers faced by regulation are the
lack of consensus and political will to enforce such an instrument. The
reality is that it is not a sufficient argument in the face of legal problems to
claim that there is a lack of consensus. Rather, the concerns raised
regarding surrogacy are valuable considerations the acknowledgment and
inclusion of which is indispensable to ensure the success of any instrument
seeking both a sufficient level of efficacy and acceptability. These
arguments should inform the final regulatory scheme. Given these
concerns, the best form of regulation can be considered to be a new
instrument, tailored to the issues of surrogacy. 108 At the core of any
regulatory framework must lie the child’s best interests.109 Equally, one
must bear in mind an overly invasive instrument seeking to cover too many
issues is unlikely to be successful. 110 Therefore, the obstacles facing
regulation are not insurmountable, but should instead form an integral part
of the drafting of any regulatory instrument in this area in order for it to be
workable at an international level.
107 Margaret Ryznar, International Commercial Surrogacy and Its Parties” (2010) 43 J
Marshall L Rev 1009, at 1035.
108 Emily Stehr, “Note, International Surrogacy Contract Regulation: National Governments’
and International Bodies’ Misguided Quests to Prevent Exploitation” (2012) 35 Hastings Int’l
and Comp L Rev 253, at 286-87.
109 Brigitte Clark, “Surrogate Motherhood: Comment on the South African Law
Commission’s Report on Surrogate Motherhood (Project 65)” (1993) 110 S Afr LJ 769, at
110 Raustalia, note 105.
2014] Surrogacy Agreements 83
III. The Proposed Hague Conference Solution to Cross-
Border Surrogacy Agreements
Introduction: Background to the Hague Conference’s
Study of International Surrogacy Agreements
As a result of the problems discussed above, there have been calls on
international decision-makers to regulate this legal vacuum.111 It was noted
by the Special Commission on the Practical Operation of the Hague
Conference that there was an increasing occurrence of international
surrogacy arrangements. As a result it was recommended that further study
be carried out in this area.112
The Hague Conference is currently in the early stages of gathering
information and issuing preliminary reports. On the 10 March 2011 the
Permanent Bureau of The Hague Conference on Private International Law
published a preliminary note entitled “Private International Law Issues
Surrounding The Status of Children, Including Issues Arising from
International Surrogacy Arrangements.” 113 The Permanent Bureau was
invited to present its final Report to the Council in 2014.114 Given the scope
of the work needed to be carried out in this area it will be several years
before a final Convention in this area even has the potential to come into
force. Currently the Hague Conference’s work in this area represents one of
the most advanced global endeavours to regulate this area. At the very
least, the Hague has begun a necessary inter-country dialogue on the issue
of international surrogacy arrangements. The Hague Convention on
Adoption indicates that the Hague Conference’s ability to regulate in this
area is promising. However, at this juncture it is necessary to establish
obstacles to the success of any Convention adopted by the Hague
Conference regulating surrogacy. This can be analysed by observing both
past failures of the Hague Conference in regulating inter-country adoption
and also by considering challenges specific to inter-country surrogacy
agreements. International surrogacy presents many new issues. Equally as
111 Casey Humbyrd, ‘Fair Trade International Surrogacy’ (2009) 9 Developing World
Bioethics 111, at 116.
112 Special Commission on the Practical Operation of the Hague Convention of 29 May 1993 -
on Protection of Children and Co-operation in Respect of Inter-Country Adoption, 17 25
June, 2010, Conclusions and Recommendations Adopted by the Special Commission, 25-26,
(visited 21 Februray 2013).
113 Preliminary Report on Surrogacy, note 4.
114Hague Website. Available .
84 Trinity College Law Review [Vol 17
it is a practice based on a continually developing scientific method, new
problems will surely arise as old ones are resolved.
At the heart of any regulation in this area must be the central aim
protecting children born as result of surrogacy agreements.115 Crucially,
guidelines must be laid down to deal with the legal problem of assigning
parentage, nationality and guardianship. The two greatest challenges to the
success of any international instrument seeking to regulate surrogacy are
first the issue of consensus and second the practical problem of
implementation. These will be considered in turn.
A. The Problem of Consensus
The central difficulty remains whether both sender and receiver countries
will sign-up and comply with this new Convention. There are concerns
regarding the Convention garnering the necessary support by countries
with a strong anti-surrogacy stance, such as France. However, when
examining the actual practices instead of just the written law in these
states, it emerges that the best interests of the child are not, in fact, being
subjugated to public policy concern - as the Conseil d’Etat decision
discussed in Chapter two shows.116 Rather, the actual approach has been
that of each case being individualised in a very time consuming manner
and important legal decisions being delegated to administrative officials.
As such, it can therefore be argued that in the interests of economy, time
and giving effect to fundamental rights, countries should sign this
Convention regardless of their stance. Guidelines can only benefit this area
of the law, since the reality demonstrates that even countries adopting a
strong stance against surrogacy ultimately allow parentage to rest with the
commissioning parents given the need to protect the child’s best interests.
Surrogacy agreements are happening with or without a legal framework.
It has been argued that lack of consensus in this area will be the
greatest challenge to any successful regulation of international surrogacy
and the resulting issue of parentage. Consensus regarding surrogacy’s
regulation will not and need not result in total agreement; rather, consensus
finding aims to ascertain minimum basic standards on which states agree in
order to satisfy their obligations under already existing pieces of
international law. Thus, the main question here is whether a judicial trend,
or at least the beginnings of a judicial trend, are emerging. When analysing
115 Todd Krim, “Beyond Baby M: International Perspectives on Gestational Surrogacy and the
Demise of the Unitary Biological Mother” (1996) 5 Annals Health L 193, at 220-21.
116 Conseil d’Etat, 4 May 2011, n˚348778.
2014] Surrogacy Agreements 85
states that have regulated this area domestically, or are in the process of
doing so, some standards can be observed: 117
commissioning/intending parents and gestational surrogates being
subject to a comprehensive evaluation prior to the initiation of any
reproductive treatment;
commissioning/intending parents and gestational surrogates must
engage in counselling throughout both the conception and pregnancy
process as a requisite;
commissioning/intending parents must pay for independent legal
advice for the gestational mother;
professional bodies, including those with medical and legal expertise,
must be established to put in place best practice provisions.
These emerging standards at the domestic level illustrate that a
consensus is developing in this area - this consensus forms the basis
of any regulatory framework.
One of the greatest difficulties with consensus in the legal sense is it posing
epistemological difficulties. Complex ethical situations must be defined,
put into language and these terms are then subjected to numerous
translations. If the initial terms are not clear and unambiguous, the
language risks becoming distorted through interpretation. More
importantly, each subsequent translation into the domestic legal order has
the potential to subtly change the initial meaning. This has been a problem
in the context of international adoption and there have been calls for
greater precision regarding these important technical definitions, saying
such clarity will lead to a “more protective and globally uniform
international law.”118
The Hague Conference’s Adoption Convention has been criticised
for some of its too broad, imprecise or even undefined terms.119 A certain
amount of imprecision is necessary, and in fact desirable, in order to ensure
the necessary flexibility so that these terms can be introduced into the
domestic legal order.120 However, the potential danger is not imprecision,
but silence and overt ambiguity. Such ambiguity on the international level
risks trickling down into the domestic order in a very negative way,
resulting in confusion and ultimately undermining the uniformity of
outcomes. This ambiguity is evidenced by the vague language of terms
117 Brugger, note 102.
118 Thompson, note 17, at 462.
119 Ibid.
120 Ibid.
86 Trinity College Law Review [Vol 17
reflecting ethical dilemmas or by the failure to articulate meanings for
certain terms at all. In this regard some omissions and ambiguities can be
observed. In this stage of the Hague Conference’s work problems of this
type can be seen and should be amended before the issuing of its final
report and the ultimate Convention.
The ‘best interests’ of the child is not a standardised criterion. This
has previously caused difficulties in the context of adoption. Since the ‘best
interests’ of a child form the basis for regulating inter-country adoption
agreements, the omission to define this term in any capacity is deeply
problematic. 121 In addition the Convention, by means of Article 16,
allocates the responsibility of determining whether the placement is in the
best interest of the child to the Central Authority of each individual state.122
Thus, due to the only definition applied being a domestic one, the effects
and benefits of an international instrument can potentially be greatly
reduced. Therefore, since it can be anticipated that the final Convention
governing inter-country surrogacy agreements will follow a similar format,
it is of vital importance that some definition of the ‘best interests’ of the
child is given to act as guideline in this regard.
There are other terms which also must be clarified and substantiated
before the Hague Conference issues any final work and perhaps the
thorniest issue still facing countries when reaching a consensus is the
contentious nature of commercial surrogacy arrangements in contrast with
altruistic surrogacy arrangements. To what extent such an altruistic
surrogacy arrangement can compensate for ‘reasonable’ expenditure before
it then moves into the realm of being a commercial surrogacy arrangement
continues shrouded in uncertainty. This dilemma is evidenced by the
supplementary comment of the Permanent Bureau stating:
It is often difficult to draw the line between what is an altruistic
surrogacy arrangement and what is a commercial arrangement. For
example, if a surrogate is unemployed prior to conception but can
claim “reasonable expenses,” including loss of earnings, for the
arrangement, it is ambiguous if this arrangement can still be
construed as “altruistic.123
121 Hague Conference on Private International Law: Final Act of 17th Session. Including the
Convention on the Protection of Children and Cooperation in Respect of Inter-Country
Adoption, 29 May 1993, S Treaty Doc No 105-51, at 1139 [hereinafter Final Act of the 17th
122 Ibid., at 1141.
123 Preliminary Report on Surrogacy, note 4, at 32.
2014] Surrogacy Agreements 87
Article 32 of The Hague Convention stipulates “no one shall derive
improper financial or other gain from an activity related to an inter-country
adoption.”124 Such an approach has its benefits in ensuring the supremacy
of the child’s best interests, however no definite standard is given as to
what constitutes ‘improper.125 In addition, under Article 32 sections 2 and
3 “only costs and expenses, including reasonable professional fees of
persons involved in the adoption, may be paid or charged” and “the
directors, administrators, and employees of bodies involved in an adoption
shall not receive remuneration which is unreasonably high in relation to
services rendered.”126 The definition of reasonable can diverge significantly
between states.127
Since the issue of reasonable compensation frequently is a
determinative factor in many cases, one can anticipate the difficulties
which would arise where it left to the Central Authorities on a domestic
level to define the parameters of when an altruistic arrangement becomes
commercial one. The resulting incongruence would be significant.
Therefore, it is suggested that this ambiguity is resolved by the Permanent
Bureau issuing guidelines as to when altruistic arrangements may be
classified as commercial. These guidelines will necessarily have to be
flexible given the differing economic climates in which parties to a
surrogacy agreement operate. One such way of achieving the required
balance between certainty and flexibility would be to analyse the domestic
judicial decisions in different states in order to determine if a consensus is
developing as to the approximate amount representing a commercial
arrangement as opposed to an altruistic arrangement.
Finally, one key definition in the context of surrogacy agreements is
the caveat of ‘public policy’ exceptions. As discussed above, public policy
exceptions have proved decisive in many cases.128 In Article 24 of the
Hague Convention on Adoption public policy is referred to as providing an
opportunity for the State to deny the adoption where it is manifestly
contrary to public policy.129 Of course, there is a benefit in having such a
procedure should an adoption be manifestly illegal.130 However, the lack of
124 Hague Conference, note 121, at 1143.
125 Erica Briscoe, “Comment, The Hague Convention on Protection of Children and Co-
operation in respect of Inter-Country Adoption: Are its Benefits Overshadowed by its
Shortcomings” (2009) 22 JAAML 437.
126 Final Act of 17th Session, note 121.
127 Briscoe, note 125.
128 Preliminary Report on Surrogacy, note 4, at 21.
129 Thompson, note 17, at 460.
130 Lisa Katz, “A Modest Proposal? The Convention on Protection of Children and Co-
operation in Respect of Inter-Country Adoption” (1995) 9 Emory Int’l L Rev 283, at 324.
88 Trinity College Law Review [Vol 17
definition and the malleable nature of the term risk its utilisation in the
advancement of a host of domestic states’ agendas and in this way usurp
the force of the Convention. 131 The problems of such an unchecked
approach are especially pertinent in the context of surrogacy. This
particular issue has already been alluded to in the Preliminary Report of the
Permanent Bureau.132 A too strong public policy exception may entail
children being left stateless and parentless, despite an international
Convention in force.133 A potentially beneficial solution proposed by the
Permanent Bureau is for the role of public policy to be significantly
narrower in connection with recognition than with the currently applicable
law. Such an instrument with a scope limited to recognition might thus be
more effective.134 However, first the term public policy must be defined in
some capacity by the Permanent Bureau, as national definitions may be in
stark opposition to one another.135 It is of vital importance for surrogacy
regulation that such a potentially divisive terms as public policy be
centrally defined in the final Convention so as to narrow its parameters.
Given that the Hague Convention acknowledges “the aim is to
prevent different interpretations from being given in the various
Contracting States, and to prevent them from restricting the concept of
fundamental rights of the child to those sanctioned by their own
constitutional rules”136 it is of fundamental importance that central terms
such as ‘commercial surrogacy arrangement, ‘best interests’ and ‘public
policy’ are not left to be defined in their entirety on a domestic level.
Consensus in form of well-defined terms will in a self-perpetuating manner
increase the possibility of consensus even further. Clarity is indispensable.
Having an instrument alone is not sufficient, as language lacking in
precision has the potential to lead to misinterpretations which can
negatively affect the very rights this instrument seeks to protect.137
What can be observed is that inter-country adoption and inter-
country surrogacy agreements have experienced a similar trajectory. While
a substantive consensus has not yet been reached, the general unrest along
with the emerging judicial trends in this area, particularly the shared
concern for the child’s best interest however they may be defined at a
131 Briscoe, note 125.
132 Preliminary Report on Surrogacy, note 4, at 21.
133 Preliminary Report on Surrogacy, note 4, at [55].
134 Preliminary Report on Surrogacy, note 4, at [56].
135 Katz, note 130.
136 Gonzalo Parra-Aranguren, “Hague Conference on Private International Law, Explanatory
Report on the 1993 Hague Inter-Country Adoption Convention” (1994) 62 HCCH
Publications (visited 29 October 2013).
137 Thompson, note 17.
2014] Surrogacy Agreements 89
national level, are in itself a consensus - a consensus that a consensus
regarding international surrogacy agreements must be reached.
B. The Problem of Differing Standards in Implementation
A central tenet of the Hague Conference is the requirement that all
signatory states designate a Central Authority which is charged with
overseeing the implementation of the terms of the Convention. 138This
institutional arrangement of self-implementation and self-regulation has the
potential to greatly undermine the Hague Convention’s success, as it has
done in the context of international adoption. 139
The even weaker consensus among states in their approach to
surrogacy compared with adoption exacerbates this risk even further. One
proposed solution is to borrow from the experience of other international
instruments. In the case of international human rights instruments the use
of audits and supervision has been a useful mechanism of ensuring
compliance.140A central authority for all states with the ability to oversee
the entire project would be helpful in this respect. Moreover, this would
permit the monitoring of intermediaries such as fertility clinics and
surrogacy agencies. This is an integral step in ensuring the adequate
protection and information of all parties to a surrogacy agreement. The
advantages of such a centralised authority charged with overseeing the
harmonious implementation of standards across national borders are
significant. By ensuring that individual nation’s differences do not
undermine the conformity of the entire project, the efficiency, efficacy and
stability of the system would be increased.141
Thompson has suggested that in order to monitor compliance with
The Hague Convention on Adoption an international committee of
138 Allen Verbrugge, Adoption (1st ed., Greenhaven Press/Thomson Gale, 2006), at 49. For
example in the United States the Central Authority is designated as the Department of State -
Hague Conference on Private 29 International Law, Authorities,
(visited 17 November
139 Margaret Jasper, International Adoption (3rd ed., Oceana Publications Inc 2003), at 29.
140 Allyn Taylor, “Globalization and Biotechnology: UNESCO and an International Strategy
to Advance Human Rights and Public Health” (1999) 25 Am JL a nd Med 479, at 519 citing
that “[t]he effectiveness of the ILO, especially in its earlier years, in utilising supervisory
mechanisms to implement international standards has been widely recognized…”
141 This argument has been discussed in the context of inter-country adoption by Katherine
Sohr, “Difficulties Implementing the Hague Convention on the Protection of Children and Co-
operation in Respect of Inter-Country Adoption: A Criticism of the Proposed Ortega’s Law
and an Advocacy for Moderate Adoption Reform in Guatemala” (2006) 18 Pace Int’l L Rev
559, at 561.
90 Trinity College Law Review [Vol 17
signatory states to oversee these Central Authorities should be established.
The suggestion made in the context of inter-country adoption agreements is
also applicable to inter-country surrogacy.142 Such an approach has the
advantage of not relying on Central Authorities to entirely self-regulate and
thereby discourage the derogation of the Convention’s provisions. Such a
disregard need not necessarily be in bad faith, but may more likely be a
result of the diverging socio-economic conditions and perspectives in
different countries. Such a committee would have the advantage of being
able to take ‘a bird’s eye’ view of all state action, monitor the varying
practices and redirect any behaviour where necessary.
The example of Guatemala under the Hague Convention on adoption
demonstrates the negative effects of states not properly implementing the
standards of the Convention.. After several years of failing to properly
implement the standards of the Convention, the United States refused to
process any further adoptions from Guatemala.143 While restructuring its
adoption system Guatemala has closed down its adoption processes.144
Given Guatemala’s economic climate, this will take time. The absence of
any supporting centralised body prolongs the delay and illustrates the need
for outside assistance. This is further substantiated by the fact that it was
only on foot of the impetus of another state, in this case the US, that the
restructuring of the adoption system began. Had there been a centralised
committee perhaps these difficulties could have been noted earlier and it
would not have been left to an individual state to spark a reaction in
another state. Such a system of oversight amounting to the absence of
oversight does not offer the necessary level of certainty needed to protect
An additional point to note is that under the current regime there is
no provision made for how Hague Convention states should deal with non-
Hague Convention states.145 In the context of inter-country adoption this
has resulted in remarkably different methodologies. 146 One avenue for
solving this problem with regards to surrogacy is to develop the minimum
standards which must be adhered to based on concept of the child’s best
interests. However, without a more tangible and meaningful elaboration of
142 Thompson, note 17, at 467.
143 US Department of State, “Warning: Adoptions Initiated in Guatemala on or After April 1
2008, www.travel.state.gov/family/adoption/country/country_4198.html> (visited 2
December 2013).
144 Kristin Collins, “Road to Foreign Adoption Grows Longer and Bumpier” News and
Observer 18 March 2008.
145 Smita Aiyar, “International Child Abductions Involving Non-Hague Convention States
(2007) 21 Emory Int’l L Rev 277, at 279.
146 Ibid.
2014] Surrogacy Agreements 91
this principle, this solution can scarcely be effective. It is suggested that the
best approach would be for the Permanent Bureau to consider how this
term has been developed on a domestic level across all states and derive
their common features.
Without some form of body overseeing the implementation of the
Convention by the respective domestic Central Authorities, treaty
compliance in participating states is potentially weakened. Therefore, the
absence of an enforcement mechanism administered by a centralised body
significantly reduces the benefits of having such an instrument of private
international law compared with a human rights instrument.147 In essence
the Hague Convention currently relies on self-regulation to accomplish its
objectives. 148 This approach of self-policing does not allow for the
necessary degree of uniformity desired, especially when any instrument in
this area must be finely tuned to compensate for the varying practices
already existing. The status quo is advantageous in the sense that it allows
maximum sovereignty to be retained by member states. However, the
nuances which develop from such practices complicate regulation even
further.149 An entirely homogenised system would prove impossible in
practice; however, a centralised committee is not about relinquishing
sovereignty, but ensuring adherence to the Convention’s minimum
baselines. By reducing this control to minimum standards, the Hague
Convention would acknowledge each state’s sovereign right to set and
enforce its own surrogacy requirements within the parameters established
by the Convention .150
In the globalised world of increasingly shrinking borders, the reach and
popularity of international surrogacy agreements is expanding rapidly,
unfettered by any international regulation. One click of a mouse will open
up hundreds of potential ‘solutions’ offering prospective parents the child
they so desperately want. However, this solution to a social problem entails
legal problems concerning uncertain parentage and the rights of the child.
147 Briscoe, note 125.
148 Holly Kennard, Curtailing the Sale and Trafficking of Children: A Discussion on the
Hague Convention in Respect of Intercountry Adoptions” (1994) 14 U Pa J Int’l Econ L 623,
at 646.
149 Katz, note 133.
150 Ibid.
92 Trinity College Law Review [Vol 17
In light of the Ukrainian born twins famously declared parentless and
stateless by the High Court of the United Kingdom, the status quo cannot
be maintained as it does not adequately protect the already existing and
enshrined rights of parties involved in surrogacy agreements, particularly
those of children.151
Global challenges require truly global solutions. An international
instrument regulating inter-country surrogacy agreements would, while
facing significant barriers such as the lack of consensus or political will
among the international community, provide substantial advantages.
International regulation would have a notable impact on the domestic legal
order of the signatory countries, particularly in the areas of parental
responsibility152 and child custody.153
The analysis of the Hague Convention’s work, and in particular that
of the Permanent Bureau, reveals it to be a substantial contribution to the
field. However, if this instrument is to be effective, the Hague Conference
must learn from lessons of the past with international adoption as it reacts
to the problems posed by the arrival of the scientific future in the form of
surrogacy. The final Convention must define key terms such as
‘commercial surrogacy arrangement’ ‘public policy’ and ‘best interests,’
currently left to be defined on a domestic level. Equally, a centralised
committee overseeing the Convention’s implementation must be
established, as a system self-regulation has proven ineffective.
Even during law’s silence, science’s progress marches steadily on.
Science now offers prospective parents and society a radically different
method of family creation. It is the responsibility of the law to “guarantee
not rights that are theoretical and illusory but rights that are practical and
effective.” 154 Thus, although an instrument regulating inter-country
surrogacy agreements may at first appear to be a radical move in
international regulation, the rights which such an instrument would seek to
protect are in fact already enshrined in both the international and domestic
legal order. Such an instrument would help protect the rights of children
151 [2008] EWHC 3030 (Fam).
152 Veronica English, Gillian Romano-Critchley, Julian Sheather and Ann Somerville, “Ethics
Briefings” (2002) 28 J Med Ethics 20.
153 Weldon Havins and James Dalessio, Reproductive Surrogacy at the Millennium:
Proposed Model Legislation Regulating “Non-Traditional” Gestational Surrogacy Contracts”
(2000) 31 McGeorge L Rev 673; RubyLee, “Note, New Trends in Global Outsourcing of
Commercial Surrogacy: A Call for Regulation” (2009) 20 Hastings Women’s LJ 275, at 285-
154 Marckx v Belgium [1979] 2 EHRR 330, at [31].
2014] Surrogacy Agreements 93
and vulnerable parties guaranteeing rights not theoretical and devoid of
force, but practical and effective.

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