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Global Trade and Assisted Reproductive Technologies: Regulatory Challenges in International Surrogacy

Published online by Cambridge University Press:  01 January 2021

Extract

Lawyers (and others) tend to look to the law to resolve disputes and to create certainty about the rights and responsibilities of parties to relationships. There is a particularly acute need for certainty in the context of global trade in surrogacy services, both because of the number of parties who may be involved in creating familial relationships and because of the vulnerabilities created as a result of surrogacy arrangements. Participants in the Global Health Challenges conference (on which this special issue is based) were invited to consider to what extent law is implicated in global health challenges — both in terms of how law might help to resolve the challenges, and (as is particularly of interest in international surrogacy), how law might contribute to or create these challenges.

Type
Symposium
Copyright
Copyright © American Society of Law, Medicine and Ethics 2013

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References

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The scope of reproductive tourism is largely unknown, although some data are beginning to emerge. See, e.g., Shenfield, F. et al., “Cross Border Reproductive Care in Six European Countries,” Human Reproduction 25, no. 6 (2010): 1361–68. The authors notes that roughly one-third of patients cited more than one reason to seek reproductive health services outside their home jurisdiction, but concluded that legal barriers to treatment at home are a “major factor” in patient decision-making. Id., at 1365–66. See also Pennings, G. et al., “Cross Border Reproductive Care in Belgium,” Human Reproduction 24, no. 12 (2009): 3108–18.CrossRefGoogle Scholar
Laufer-Ukeles, P., “Gestation: Work for Hire or the Essence of Motherhood? A Comparative Legal Analysis,” Duke Journal of Gender Law & Policy 9, no. 1 (2002): 91134. The same kinds of concerns are relevant in traditional surrogacy arrangements, where the gametes are contributed by the surrogate mother and the intended/commissioning father. U.K. law treats gestational and traditional surrogacy very distinctly in that only gestational surrogacy is subject to regulation by the Human Fertilisation and Embryology Authority. See Horsey, K. and Sheldon, S., “Still Hazy After All These Years: The Law Regulating Surrogacy,” Medical Law Review 20, no. 1 (2012): 67–89.Google Scholar
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AHR Act, supra note 9, at s. 12 (as amended by the Jobs, Growth and Long-Term Prosperity Act, supra note 9, at s. 719): 12. (1) No person shall, except in accordance with the regulations, (a) reimburse a donor for an expenditure incurred in the course of donating sperm or an ovum; (b) reimburse any person for an expenditure incurred in the maintenance or transport of an in vitro embryo; or (c) reimburse a surrogate mother for an expenditure incurred by her in relation to her surrogacy. (2) No person shall reimburse an expenditure referred to in subsection (1) unless a receipt is provided to that person for the expenditure. (3) No person shall reimburse a surrogate mother for a loss of work-related income incurred during her pregnancy, unless (a) a qualified medical practitioner certifies, in writing, that continuing to work may pose a risk to her health or that of the embryo or foetus; and (b) the reimbursement is made in accordance with the regulations.Google Scholar
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Child Status Act, R.S.P.E.I. 1988, c. C-6, s. 9: 9(5) In the case of birth by assisted conception, a person is presumed to be the parent of a child if the person was, at the time the mother is inseminated, the spouse of, or cohabiting in a conjugal relationship with, the mother unless (a) the person did not consent in advance to the assisted conception and did not demonstrate a settled intention to treat the child as the person's child; or (b) the person did not know that the child was born by assisted conception. (6) A person who donates the semen or ovum used in the assisted conception of a child is not, by that reason alone, a parent of the child. (7) A woman who gives birth to a child is deemed to be the mother of the child, whether the woman is or is not the genetic mother of the child. Similar provisions are found in the Yukon Territory and in Newfoundland and Labrador. Children's Law Act, R.S.N.L. 1990, c. C-13, s. 12; Children's Act, R.S.Y. 2002, c. 31, s. 13.Google Scholar
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Id., at s. 8.1(3). Thus, where a woman provides an ovum or embryo for her own reproductive use and bears the child herself, her partner or spouse is the other parent. If the birth mother is a surrogate and is declared not to be a parent, then the embryo or egg provider and partner are the parents.Google Scholar
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Id., at ss. 35 (Canadian orders), 36 (non-Canadian orders). If a Canadian order is in place, the court must recognize it (unless new evidence is in play that was not available during the out-of-BC proceeding, or unless the court is satisfied that the order was obtained under fraud or duress). If a non-Canadian order is in place, the court must recognize it if at least one of the parents was habitually resident in, or had a real and substantial connection with, the foreign jurisdiction. As to refusing to recognize the foreign order, the same rules apply except that the court can also refuse to recognize the foreign order if it is of the view that the order is contrary to public policy. Alberta's legislation does not specify how extra-provincial or foreign orders are to be handled.Google Scholar
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HFE Act, supra note 53, at ss. 33, 35–37. In other words, if donor gametes are used, the donor is not the parent; the birth mother and her partner are the parents.Google Scholar
This route to fatherhood exists by virtue of ss. 35–37 of the HFE Act. Id. The idea is that the intended father and the surrogate mother received “treatment together”. Horsey, and Sheldon, , supra note 13. Horsey and Sheldon note that the law may have the effect of encouraging the demand for unmarried women as surrogates.Google Scholar
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This is discussed in more detail in section 4 (pages 910), below.Google Scholar
As this condition is mandatory, the U.K. courts have no discretion to modify the timeline. This could potentially become an impediment where, due to conflicting legal rules, immigration concerns and inaccurate legal advice, the application cannot be made in a timely fashion.Google Scholar
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See, e.g., Australian Capital Territory (id., at s. 31); New South Wales (Surrogacy Act (N.S.W.), supra note 65, at s. 6) (although the obligation to pay or reimburse surrogacy costs is enforceable); Victoria (Assisted Reproductive Treatment Act 2008 (Vic.), s. 44(3)) (“To the extent that a surrogacy arrangement provides for a matter other than the reimbursement for costs actually incurred by the surrogate mother the arrangement is void and unenforceable”).Google Scholar
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