Abstract
Surrogacy in recent decade has transcended the national borders, which has created new challenges for the legal systems in determining legal parentage and enforcing surrogacy agreements. The concept of cross-border surrogacy[1],[2],[3],[4] constitutes involvement of parents from one country, intending to avail surrogacy services in another for various reasons. Such reasons could be more flexible legal frameworks regarding surrogacy, or more convenient costs. Such arrangements require approach under the Private International Law (PIL) which will shall in future apply in matters of legal conflicts such as recognition of legal parentage, conflict of laws, nationality of the child and in matters of surrogacy contracts.
This article explores such conflicting situations and challenges faced during cross-border surrogacy disputes. It studies how various jurisdictions approach to resolve the issues involving foreign surrogacy agreements in the context of private international law within the Indian as well as comparatively international jurisprudence. The paper includes a comparative study of the cross-border surrogacy legal frameworks between India and other legal systems such as the USA and UK. It also includes the conflict of laws in the cases of statelessness of the children born via surrogacy, denials of parental responsibility and case laws recognising the foreign judgements.
With the comparative study, the article examines the gap in the existing regulatory legal framework, the requirement for a uniform international regulatory structure to protect the best interest of the surrogate-born children and intending parents.
Keywords: Private International Law, Surrogacy, Cross-Border Surrogacy, Cross-Border Reproductive Arrangements, Agreements, Citizenship.
Introduction
With the advancement in medical science, there had been the development of assisted reproductive technology (ART) to help couples or individuals facing infertility to achieve parenthood through surrogacy. This development coupled with globalization has led to evolution in laws and a surge in foreign surrogacy or cross-border surrogacy arrangements. In a cross-border surrogacy, the intended parents travel across countries to seek surrogates due to favourable legal conditions, social acceptance or low cost charges. Some popular countries favoured for international reproductive tourism are Ukraine, India, Georgia, and certain states of the US. However, the law hasn’t evolved in coordination with the consistent development of the foreign surrogacy arrangements. Specifically, in issues concerning the custody, parentage citizenship and recognition of surrogacy contract across the borders.
The core legal complication in the international surrogacy is rooted in the conflict between domestic laws and the national laws. Due to the varying standards of parenthood, difference in public policies and non-recognition of commercial surrogacy across different countries, sometimes the home country of the intending parents does not recognise the surrogate-born child even though the surrogate’s country may consider the intending parents to be the legal guardians of the surrogate-born child. Such disputes are matters of consequences which at times leaves the surrogate-born in a status of legal statelessness, prolonged custody cases coupled with emotional and financial trauma for the parties involved.
In India, there was a lacuna in the regulation of cross-border surrogacy and even in the international lever until the year 2021. No existing regulatory instruments provided any specific provisions to guide this particular evolving area of the private international law which leads to a surge in the unresolved disputes[5]. Among the many problems in this area of private international law, the significant issues are the legal parentage, nationality and immigration[6]. Apart from these some other issues are some other unforeseen legal challenges[7]. What happens when the intending parents refuse to accept the child in case of disability[8] or because the marriage breaks down before the child is born[9] or if the surrogate mother decides to keep the baby[10] or during the transfer of the legal parenthood[11]. There arise several other issues at times such as the access and custody conflicts when the intending parents and the surrogate mother reside at two different countries, at the times of child abduction or financial support[12] and maintenance disputes[13].
This is where Private International Law (PIL) plays its part. Private International Law regulates the legal issues involving foreign elements, particularly in private relationships and there is a presence of conflict in jurisdictions, application of laws, and recognition of foreign judgments and statutes. In this context, private international law addresses the conflicts between which domestic court must recognise the surrogacy agreement which is executed abroad or the parentage judgement and whether the laws of the country of the intending parents or the surrogate should apply. The courts in this regard decide in the best interest of the child, keeping the rights of the surrogate and the intending parents in view, evaluating all competing notions.
[1] Trimmings, K. and Beaumont, P., 2013. ‘General Report on Surrogacy’ in K. Trimmings and P. Beaumont (eds), International Surrogacy Arrangements: Legal Regulation at the International Level, pp. 439–549.
[2] Trimmings, K. and Beaumont, P., 2016. ‘Parentage and Surrogacy in a European Perspective’ in C. von Scherpe (ed.), European Family Law, vol. III, pp. 232–283.
[3] Beaumont, P. and Trimmings, K., forthcoming. ‘A Need for Global Regulation of Surrogacy?’ in G. Biagioni and Ippolito (eds), Migrant Children in the XX Century: Selected Issues of Public and Private International Law.
[4] Hague Conference on Private International Law, The Parentage / Surrogacy Project
[5]X Y (Foreign Surrogacy) (2008) EWHC 3030 (Fam), per Hedley J at [8]: “many pitfalls confront the couple who consider commissioning foreign surrogacy” and “potentially difficult conflict of law issues arise which may have wholly uncommissioning and unforeseen consequences.”
[6] Human Fertilisation and Embryology (Parental Orders) Regulations 2010, Explanatory Memorandum, para. 8.7. Home Office, 2009. Inter‑country Surrogacy and Immigration Rules. Re I (A Child) [2011] EWHC 921 (Fam), paras 81–111. Re Z (Foreign Surrogacy: Allocation of Work: Guidance on Parental Order Reports) [2015] EWFC 90, paras 76, 94–197. KB v RT [2016] EWHC 760 (Fam). Re X (Foreign Surrogacy: Child’s Name) [2016] EWHC 1068 (Fam), paras 6–12.
[7]Theis, L., Gamble, N. and Gheavaert, L., 2009. ‘Re X and Y (Foreign Surrogacy): A Trek Through a Thorn Forest’, Family Law Journal, 39(3), p. 239.
[8]Hyder, S., 2010. BioNews, 11 October. Farnell&Ors and Chanbua [2016] FCWA 17 (Fam Ct WA).
[9] “Surrogate Mum of Twins Unfazed After Baby Deal Fall Apart”, 2011. CBC News (New Brunswick), 13 September.
[10]CW v NT & Anor [2011] EWHC 33 (Fam).
[11]Re C and D (Children) (Fact‑finding Hearing) [2015] EWHC 1059 (Fam).
[12] Trimmings, K., 2014. ‘The Interface between Maintenance and Cross‑Border Surrogacy’ in P. Beaumont et al. (eds), The Recovery of Maintenance in the EU and Worldwide, pp. 261–274.
[13]W and B v H (Child Abduction: Surrogacy) [2002] 1 FLR 1008.