Protecting the Voiceless: Rights of the Child in Transnational Surrogacy Agreements
Boyce, Anika Keys, Suffolk Transnational Law Review
Only seconds old, a newborn screams in an Indian hospital. Nurses hurriedly wrap her up in blankets and check all her vitals to ensure she is healthy. While she cries, the doctor checks on the woman who just gave birth to a healthy baby girl, a long nine months in the making. But the woman is not her mother--and the baby's genetic parents are hand-in-hand out in the hallway desperately waiting to see their daughter for the first time. After years of bitter disappointment, the baby's infertile western parents contracted to have her brought into this world via an Indian surrogate. Although the newborn girl has just been born, her status and security are already in peril. Whether she will be granted her fundamental right to citizenship so her parents may procure the necessary travel documents to take her home with them is in legal limbo.
This story is all too familiar for many people who want a child when they are incapable of producing their own. (1) For this couple, the coming months and years may involve a desperate legal battle in which the genetic parents fight courts and government agencies to secure their newborn's rights to citizenship, birth certificate and legal recognition of themselves as the baby's parents. (2) Although the baby they are fighting for is genetically theirs, he or she was brought into this world by extraordinary means and while India and others supply this advanced technology for infertile adults, many countries do not recognize surrogacy as a legitimate means of reproduction. (3) Therefore, while the parents fight their home country's policies and laws and their case slowly moves up the court's docket, the baby is stateless. (4) The resulting baby is the one party who had no decision making power in the surrogacy arrangement and remains voiceless throughout the legal proceedings that will dictate his or her fate. (5) This article focuses on the most vulnerable party in today's burgeoning transnational commercial surrogacy market: the child.
1) Genetic Mother. A woman who contributes her egg in order to produce the child. (6)
2) Genetic Father. A man who contributes his sperm in order to produce the child. (7)
3) Intended Parents: Individuals who intend to become the legal parents of the child produced as a result of a surrogacy agreement. (8)
4) Surrogate/Surrogate Mother. A woman who agrees to carry another's fetus in her uterus to term and gives birth. (9)
5) Altruistic Surrogacy. An arrangement in which the surrogate mother is reimbursed for her reasonable medical expenses while pregnant and nothing more. (10)
5) Commercial Surrogacy. A commercial arrangement in which the surrogate is reimbursed for her reasonable medical expenses while pregnant and compensated for her surrogacy services. (11)
III. OVERVIEW OF INTERNATIONAL SURROGACY LAWS AND POLICES
The problem of stateless children may occur when intended parents travel to a foreign country, such as India, to enter into a surrogacy arrangement. (12) After the resulting child is born and the intended parents seek to return to their home country with their newborn, the home country may refuse to issue a passport for the child or recognize the intended parents as the child's legal parents. (13) At the same time, the child may be denied citizenship in the country where the surrogacy took place because that country may consider the intended parents to be the child's legal parents, and thus the child is not entitled to acquire the domestic citizenship of the foreign country. (14) Home countries that refuse to issue the necessary travel documents or recognize the intended parents as the legal parents of surrogate children typically do so because they maintain the traditional view of legal parentage in which the "legal mother" is the child's birth mother, and if the birth mother is married, the law presumes her husband to be the legal father. …