June 01, 2016

Ending Border Battles: ABA Resolution on International Surrogacy

Debates over the legal and ethical implications of assisted reproductive technology (ART) continue as advancements in medical technology enable the global expansion of new family forms. Beyond the infertile, same-sex couples and single individuals are now able to create families with their own genetic material. But when surrogacy arrangements involve individuals from more than one nation, the legal status of the parents and of the resulting child may be uncertain. So-called “stateless” children born through international surrogacy arrangements (ISAs) have prompted an international discussion about whether a Hague Convention on International Surrogacy is needed. Of additional concern is the potential for exploitation of women in the international surrogacy process. Different countries have reached starkly different conclusions to some of these legal and ethical questions. Some, for example, view surrogacy as subject to exactly the same principles as adoption, while others view surrogacy as involving unique principles. The Hague Conference on Private International Law (HCCH) is engaged in research on these issues as well.

To help find clarity and protect all of those involved in the process, the Section of Family Law, along with the Section of Science & Technology Law and the Section of Real Property, Trust and Estate Law as cosponsors, drafted a comprehensive paper addressing these issues. The paper was presented as a Resolution for consideration by the ABA House of Delegates at the February 2016 Midyear Meeting in San Diego, California.

While the sponsors of the Resolution support the general goal of an international convention on private international law concerning children, including international surrogacy arrangements, conflict of laws and comity (i.e., cross-border recognition of parentage judgments) should be the cornerstone of any such collective international approach as opposed to regulation of the surrogacy industry itself. A convention of this type should recognize the clear distinctions between adoption and surrogacy rather than reflexively applying legal frameworks created for adoptions, such as the existing Hague Convention on Adoption, to surrogacy arrangements. The HCCH itself has acknowledged that the existing adoption convention may not be suited to address the issues raised by international surrogacy. The sponsors’ position is that the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption (1993) is not an appropriate model for any convention regarding surrogacy.

The sponsors strongly urge that any convention allows individual member countries to regulate surrogacy as deemed appropriate by that country, without imposing new international restrictions on surrogacy arrangements.

It is the sponsors’ view that international regulation of surrogacy arrangements could lead to other problems that will complicate the issues rather than resolve them. Most important, the sponsors’ position is that rather than regulating the details and mechanics of surrogacy itself, what is most needed is an agreement among countries to recognize parentage judgments validly issued by participating countries. This would ensure that the parental relationship and citizenship status of all children, no matter the circumstance of their birth, are not left to the uncertainties of the varied legal approaches of individual nations.

This Resolution was adopted by the House of Delegates in February 2016, and now is a formal Resolution (112B) of the ABA.