Tuesday, 9 July 2013

International Surrogacy - Is a global response achievable?

A report published this week examines the legal structures relating to surrogacy across the EU Membership.

The report, commissioned by the European Parliament, was written by academics from the Université Paris, the University of Glasgow and the LSE.

It is a compendious document, weighing in at over 380 pages.  Much of that consists of an analysis of surrogacy law and practice in jurisdictions around the globe:  Australia, Belgium, Bulgaria, Germany, Greece, Italy, the Netherlands, Romania, Russia, South Africa and Spain.

A harmonised approach to surrogacy within the EU Membership looks still to be some way off.  In many EU Member States, surrogacy is illegal.  In others, there is no legal provision for it.  The report’s authors conclude that a principal aim of any EU response should be to go beyond dispute management and manage surrogacy as an international practice.  It should provide certainty on the legal parenthood of the child and his or her entitlement to move to and settle in the home country of the commissioning parents.

One of the key problems with the reform of surrogacy is that there is only limited data available about the phenomenon.  The report recommends that   improved systems be put in place routinely to record relevant information about surrogacy arrangements and outcomes across all countries.

Surrogacy is in fact on the agenda on a broader scale.  It is an issue that the Hague Conference on Private International Law is currently considering.  Whilst the EU (self-evidently) is limited to the twenty-eight Member States in Europe, the Hague Conference has global application.  One needs to look no further than the success of the 1980 Hague Abduction Convention for an example of just how effective some of the treaties emanating from the Conference have been in managing issues affecting families internationally.  That particular Convention now operates as between some eighty Contracting States, a number set soon to increase once Japan and others come on board.

In 2011, the Council on General Affairs and Policy of the Hague Conference invited the Permanent Bureau to intensify its work on the private international law issues surrounding the status of children, with emphasis on the broad range of issues arising from international surrogacy arrangements.

In 2012, the Council asked the Permanent Bureau to continue the current work under the 2011 mandate and further prepare and distribute a Questionnaire in order to obtain more detailed information regarding the extent and nature of the issues being encountered in relation to international surrogacy arrangements.  The Permanent Bureau will present its final Report to the Council in 2014.

As identified in the EU study, empirical data is key.  The Permanent Bureau of the Hague Conference is looking for input from those who have been involved in international surrogacy arrangements, either in a personal or professional capacity.  Those with experience of such arrangements should contact the Permanent Bureau to ensure that the Report is as comprehensive as possible when presented next year. 

The Permanent Bureau is particularly seeking information from legal professionals with relevant practical experience in this field at an international level.  A Questionnaire directed to such individuals has been prepared and can be completed online.  Responses close at the end of September 2013, in order to allow the Permanent Bureau time to consider the responses and factor them into the Report.
For those considering embarking on a surrogacy arrangement, especially one with an international dimension, expert legal advice may prove crucial to a successful outcome.  But that advice needn’t cost the earth, and a fixed-fee arrangement ought to be appropriate in many cases.

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