From Baby M to Baby M (anji): Regulating International Surrogacy Agreements

Abstract

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known and longstanding debate concerning domestic surrogacy, a new ethical and legal debate has emerged concerning international surrogacy agreements. One aspect of this debate, which I will explore in this paper, is that international surrogacy requires a more robust regulatory regime. I will articulate a variety of solutions to effectuate this regulatory regime and will enumerate the advantages and disadvantages of these solutions. Against this background, I propose a Hague international convention to regulate international surrogacy agreements, similar to the existing Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption. Notwithstanding my support of a Hague convention, this alone will be insufficient to address some of the issues raised by international surrogacy. Therefore, in addition to a Hague convention to regulate international surrogacy, I propose the implementation of domestic regulation similar to the proposed 2010 Indian Assisted Reproductive Technology (Regulation) Bill and Rules or Israel’s 2012 expert committee recommendations and 2014 proposed regulation.

Keywords: Family Law, Contract Law, surrogate mother, Surrogacy Contract/Agreement, Hague convention, Surrogate Mother, Surrogacy, Intended Parent, Intentional Parenthood, international/cross-borders/transnational surrogacy, fertility tourism, India, Israel, regulation