Cross-Border Surrogacy: Media Spotlight, EU Court Decision, International Forum

As The New York Times pointed out in a front-page article this past Sunday, “hiring a woman to carry a child” is not allowed in “most of the world.” But cross-border surrogacy, which took off in India more than a decade ago, continues to spread and grow. Now, a range of challenges connected to the practice is being addressed by a high-profile media account, a ruling of the European Court of Human Rights, and an upcoming international conference.

The U.S. as a destination for contract pregnancy

The New York Times story’s focus is on people from outside the U.S. who arrange a contract pregnancy here because it is illegal in their home countries. The featured commissioning parents in “Coming to U.S. for Baby, and Womb to Carry It” by Tamar Lewin are a gay Portuguese couple. Their story – and the baby they are now happily raising – frames the lengthy piece, but Lewin also details the obstacles and tribulations they faced, including a close brush with a sketchy surrogacy agency, a miscarriage, costs in the hundreds of thousands of dollars, and challenges getting citizenship in Portugal for their son.

Lewin also includes critical comments from two feminist scholars, McGill University emeritus professor Abby Lippman and Ingrid Schneider of the University of Hamburg’s Research Center on Biotechnology, Society and the Environment. And she tells the story of Arizona surrogate Heather Rice, who came into conflict with the couple that hired her when, 21 weeks into her pregnancy, an ultrasound showed a problem with the fetus she was carrying.

The article attracted more than 500 comments; an analysis by CGS summer intern Victoria Nichols (available by request) found those expressing opposition or concern about commercial cross-border surrogacy outnumbering those expressing support for it by about 4 to 1.

(As a side note on media coverage, the shortened version of the article that appeared in the San Francisco Chronicle on July 9 omitted nearly all the material that would raise concerns about cross-border surrogacy – including the problems encountered by the Portuguese couple; the comments by Lippman and Schneider; Rice’s story; the cases of US surrogacy agencies, which are entirely unregulated, that have ripped off both intending parents and surrogates; and more.)

European Court of Human Rights rules on children of surrogacy

The legal status of children born as a result of cross-border surrogacy arrangements – that is, their officially recognized parentage and citizenship – has become an increasingly pressing issue. Difficult situations can arise when commissioning parents from countries that prohibit commercial surrogacy flout these laws by hiring surrogates in one of the few jurisdictions that allow it.

Most of the time, the parent’s countries have permitted these children to return home with their social parents. But sometimes they live in legal limbo for years. In late June, the European Court of Human Rights (ECHR) ruled on cases brought by two French families whose children were conceived with their fathers’ sperm and third-party eggs, and carried and delivered by surrogates in California and in Minnesota. The children have U.S. citizenship because of their birth place, and their parentage had been legally established in the United States. They have been living with their families in France, but without legal recognition of their parental status.

The ECHR did not question France’s right to prohibit commercial surrogacy, but ruled that refusing to grant legal status to the parent-child relationships of children born to surrogate mothers abroad “undermined the children’s identity within French society.”

An international conference on cross-border surrogacy

These questions and many others will be considered at the upcoming International Forum on Intercountry Adoption & Global Surrogacy, to be held this August in The Hague, Netherlands. The forum will bring together women’s health advocates, scholars, and policy and legal experts from around the world; its objective is

to produce a body of knowledge that will inform the work of the Hague Convention as it moves ahead with implementation of the Hague Convention on Inter-Country Adoption, and with plans to create a convention on inter-country surrogacy.

The Center for Genetics and Society is chairing the forum’s thematic area on “Global Surrogacy Practices.” We’ll be reporting in this blog on the forum’s deliberations and recommendations.

Previously on Biopolitical Times:

• Another Scandal at a Prominent Surrogacy Agency
• Shifts in the Global Body Market: Access or Exploitation?
• "They are just the wombs"