Surrogacy across borders : should there be an adoption of an international framework?

Abstract

The concept of surrogate motherhood has been alive since pre-historic times meaning that surrogacy is not a new concept of today. However today we have a new form of surrogacy and this is due to the rapid advances in medical science. This means that at the present time it is possible for the surrogate mother not to have any biological ties to the child she gestates. The changes in family formations giving rise to family units which depart from the traditional model, and the paradoxical ascendancy at the same time of individualistic aspirations have led many interested parties who are unable to have children to look for other available options such as surrogacy. When surrogacy is not available o in a home State, aspiring parents travel across borders to find attractive and favourable jurisdictions to enter into a surrogacy arrangement. The main problem that arises is that, due to the fact that different States have different surrogacy laws or no laws at all, the child is the result of an international surrogacy arrangement faces problems with the recognition of legal parentage, as at the present time there is no international regulation in the sphere of surrogacy. This is a very dangerous situation as the child may be left stateless and parentless. Some progressive states believe that the principle of mater semper certa est no longer holds water today as assisted reproductive techniques (ART) have diluted what was regarded for centuries as an absolute concept. In fact, with surrogacy, today you can have up to three mothers involved in this process. Nonetheless for some other restrictive states the archaic principle of motherhood is still endorsed as in the past times. These latter states are not unwilling to accept the evolving changes in society and science, as they believe that it is against their public policies. For these above mentioned reasons the law of parentage in different selected States will be examined by means of relevant judgements. The child is put in an unfavourable position due to his/her intended parents’ actions, and since aspiring parents in certain cases will have recourse to all prohibitions to achieve parenthood, it does not appear that surrogacy as a means to parenthood shall no longer exist. In view of this, an international convention which aims at fostering judicial and administrative co-operation between states on surrogacy arrangements in order for the child to have legal parenthood certainty is more and more necessary. This without delving into the question of whether surrogacy is allowed at the national level since national boundaries do not keep states’ citizens from finding solutions to their problems abroad.