Recent discussions about how to mitigate the international issues that have arisen as a result of international surrogacy arrangements have focused on ways to regulate the surrogacy market itself. The surrogacy market may not be the actual problem that needs to be regulated, but it does expose flaws that need to be addressed in the international private law system.
Recent advancements in medical technology have enabled the expansion of third-party assisted reproduction (surrogacy) for infertile couples and single individuals. When surrogacy arrangements involve individuals from more than one nation, the legal status of the individuals and the resulting child may be uncertain. Situations where "stateless" children were born through international surrogacy arrangements have prompted a discussion about whether some form of international regulation is needed, such as a Hague Convention on International Surrogacy.
The Permanent Bureau of the Hague Conference on Private International Law's Council on General Affairs and Policy is currently engaged in research to determine how to effectively address the issues posed by international surrogacy arrangements. (2) Of greatest concern are situations where the legal parentage, nationality, and immigration status of the child born through international surrogacy are unclear due to conflicting national laws governing these matters. Of additional concern is the potential for exploitation of individuals in the international surrogacy process, particularly the exploitation of the women who act as gestational carriers.
The question, therefore, is if and how to establish a regulatory framework to help avoid stateless children and exploitation of women. One approach would be to regulate the international surrogacy industry itself. This industry regulation could take the form of a Convention on Surrogacy that establishes rules specifically for surrogacy arrangements involving participants from more than one country. Another approach would be to regulate the acceptance of parentage documents between states. This approach could potentially be accomplished with existing international agreements, or through the implementation of new international agreements that are not necessarily specific to international surrogacy arrangements.
II. UNDERLYING MARKET FORCES
Before examining potential options for a solution to the problems posed by international surrogacy arrangements, it may be helpful to examine the parameters of the international surrogacy market. (3) It is undeniable that the commissioning of children through surrogacy--for money--represents a market. (4) Any solution to the problems posed by international surrogacy arrangements must take into consideration the underlying market forces at work in these arrangements.
The desire to reproduce is a powerful force in this market. Modern gestational surrogacy can be seen as a legitimate fertility treatment option for the infertile who wish to reproduce. The choice to reproduce is a fundamental human right. (5) There are many ways in which people can choose to reproduce, including surrogacy. Surrogacy is often conflated with adoption, but the markets for surrogacy and adoption are distinct. People who choose to pursue surrogacy do not always do so as an alternative to adoption.
Surrogacy has existed in various forms throughout history. (6) When fertility treatment advanced to separate the component parts of conception and gestation, market forces drove the growth of international surrogacy. (7) The international surrogacy market exists for two reasons: barriers to domestic surrogacy or other assisted reproductive options (evidenced by the pursuit of surrogacy in the United States by European intended parents), and cost savings (evidenced by the growth of surrogacy in lower cost nations). (8) The overall value of the market is unknown, but a report in 2010 estimated that the value of the surrogacy industry in India alone would reach USD2. …