The Best Interests of the Child Principle and the Practice of Surrogacy in a Globalised World

The present thesis analyses the practice of surrogacy from the perspective of the best interests of the child principle and makes proposals for its regulation at the international and at the national level. It follows a normative ethics and human rights methodology. Surrogacy has gained increasing popularity in many countries worldwide over the last decades. In the United States, the number of assisted reproductive technology (ART) cycles performed for gestational surrogacy has increased more than 20-fold between 1999 and 2018. Estimates on the basis of data from the Centers for Disease Control and Prevention (CDC) indicate that between 7,000 and 8,500 children have been born from gestational surrogacy in the United States in 2018. Several jurisdictions, notably New York, Israel and Portugal, have liberalised their surrogacy laws in recent years. In other jurisdictions, notably the United Kingdom, Germany and Québec, a reform of laws on surrogacy is planned for the imminent future. The legal, economic and social contexts in which surrogacy is practiced vary widely. In some jurisdictions, e.g., California, Texas, Russia, Ukraine, Georgia, Iran and Israel, commercial surrogacy is legal, whereas others, e.g., Australia, Brazil, Colombia, the Netherlands, Portugal, South Africa, the United Kingdom, and most Canadian provinces only allow altruistic (non- commercial) surrogacy. Surrogacy is banned altogether in, e.g., France, Germany, Switzerland, Italy, Spain, Poland, China, and Turkey. Legal safeguards to protect surrogate mothers and children also vary widely, ranging from virtually no safeguards (e.g., Russia, Ukraine) to very comprehensive regulatory models (e.g., Israel). The economic situation and the motives of women to act as surrogate mothers also vary widely, as do the expectations of the surrogate mother and the intended parents regarding the surrogacy process (e.g., closer contact vs. “professional” relationship). I contend that the practice of surrogacy does not per se violate the best interests of the child principle, but carries significant risks to children’s best interests, which should be addressed through comprehensive international regulation. Every surrogacy arrangement should be subject to a pre-conception best interests of the child assessment by a court or regulatory body. In cases of intercountry surrogacy, a best interests of the child assessment should be conducted by the home state of the intended parents and reviewed by a court or regulatory body in the state where the surrogacy arrangement is performed (e.g., through the procedure for recognition of foreign administrative and court orders). In addition, certain practices occurring in the context of surrogacy which constitute blatant children’s and women’s rights violations, e.g., “abortion clauses” or anonymity of the surrogate mother, should be outlawed at the global level. Furthermore, high-income countries should take strict measures to tackle the “outsourcing” of surrogacy to low- and middle-income countries, which transforms surrogacy into a global production process and puts the health of surrogate mothers and children seriously at risk. Such measures to tackle intercountry commercial surrogacy (“surrogacy tourism”) could, for instance, include the introduction of favourable legal frameworks for co-parenting, multi- parenthood and altruistic surrogacy as well as criminal law bans on intercountry commercial surrogacy. On the basis of my findings, I call for an international legal framework to regulate surrogacy in line with the best interests principle at the global and at the national level. This framework should be based on the Verona Principles for the Protection of the Rights of the Child Born Through Surrogacy (2021) and a consultation of experts and key stakeholders (e.g., medicalethicists; gynaecologists and obstetricians; family law experts; children’s and women’s rights associations) and an assessment of the ethical, legal and social implications of the surrogacy regulation adopted. To inform the process of development of an international regulatory framework for surrogacy, all states should start collecting and publishing data on domestic and intercountry surrogacy arrangements by their citizens. This data should include information on the demographics of surrogate mothers and intended parents, payments received by surrogate mothers (if applicable), and the obstetric and psychological outcomes of the surrogate mothers. In addition, further research is needed to understand the impact of surrogacy on child development and the psychological wellbeing of the child. The international legal framework for surrogacy should be subject to a regular review procedure on the basis of new scientific evidence on the impact of surrogacy on the physical and mental health of surrogate mothers and children.

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