Legal Parentage In International Surrogacy Arrangements Case

For a long time,cross-border commercial surrogacy has been surrounded by ethical controversy.Based on human dignity,critics are against surrogacy for the commoditization of the child and wombs of a women's body.Human rights defenders around the world have also been worried about the poor living conditions of,particularly,Indian surrogate mothers.As the only two options for infertile couples to have children,surrogacy and adoption can be considered as the substitutes.Through surrogacy method,intended parents own a baby with a genetic tie(at least with the intended father).That is the reason why they prefer surrogacy to adoption,in which adoptive parents have no genetic link with the child.The Netherlands introduced same-sex marriage in 2001,and since then more and more countries allow same-sex couples to enjoy family life.Same-sex couples become one of the main driving forces of pursuing cross-border commercial surrogacy.Changes happening in family structures bring challenges to legislation.Firstly,determination of legal parents in surrogacy is proved to be complicated,as a genetic mother who offers egg,a surrogate mother who carries a pregnancy and intended mother may not be the same person.Secondly,conflicts of laws increase the difficulty level of cases concerning cross-border commercial surrogacy,including the establishment of parentage,recognition of a child's citizenship and other issues involving custody rights.Attitudes towards commercial surrogacy vary from country to country.In some jurisdictions,commercial surrogacy is totally prohibited.Sanctions in criminal law and administrative law are imposed on those involved in commercial surrogacy.Many countries sharply restrict this type of surrogacy,taking public morality and human rights into consideration.However,cross-border commercial surrogacy also benefits many people.To balance different interests,some jurisdictions,such as Ukraine,California,and Illinois,hold a more tolerant attitude towards commercial surrogacy,in which commercial surrogacy contracts are considered enforceable under the family legislation.As time passed by,more and more cases involving cross-border commercial surrogacy appear.To address those legal issues,negative externalities of cross-border commercial surrogacy need to be internalized.A law and economics approach is applied.There exist negative externalities on the society.Initially,as the substitute for surrogacy,the adoption system may be hammered.Pursuit of surrogacy is likely to aggravate the imbalance between a large number of homeless children and the shortage of foster families and adoptive families.Then the economic,psychological and social costs of abandonment occurred to the public.States need to maintain moral needs and protect the natural ethics of their society.Other crimes,especially human trafficking crimes,induced by commercial surrogacy industry need to be combated in some jurisdictions,such as Indian,Thailand,and Cambodia.With further investigation of those cases,we find that there are huge negative externalities of commercial surrogacy.The mainly negative externalities are on children.Firstly,children born throughsurrogacy face a risk of abandonment,not only in the situation of health problems,such as disability,but also when the intended parents decide to separate or divorce.The surrogate mother is usually too poor to raise the child.Once being abandoned by the intended parents,the child will suffer from homelessness and hunger.At the same time,PIL issues in cross-border surrogacy including the determination of applicable law with regard to the contract as well as the recognition of the child's legal parentage abroad,require long-time procedures.Children are put in an uncertain legal status.The legal principle of the best interests of the child plays a more and more important role in judicial activities.