Surrogacy has become an increasingly popular family building option on a global scale in recent years. Unlike adoption and private international children law, there is no international harmonisation of surrogacy law (or surrogacy practice). Each jurisdiction adopts its own laws and regulation of surrogacy, resulting in very different approaches to surrogacy across the world, with some banning it altogether and others permitting it on a commercial basis.
The international patchwork approach to surrogacy creates all manner of legal and practical difficulties (as well as ethical sensitivities). It increasingly challenges attitudes and policy governing fertility treatment, regulation and availability of donor eggs and sperm, incidence of multiple birth, commercialised conception and its intersection with altruism and freedom of choice, suitability and vetting of intended parents and surrogates and the character and identity of modern families created through surrogacy. It creates international conflicts of surrogacy law, which can leave surrogate born children vulnerable and stranded in foreign jurisdictions and at risk of placement in foreign orphanages. It can also lead to criminal sanctions being taken against intended parents.
The reality is that people can cross borders and enter into commercial surrogacy arrangements in foreign jurisdictions, even if it would be illegal to undertake surrogacy on the same basis (or at all) under their own domestic law. Sophisticated assisted reproduction techniques and commercially available surrogates, donor eggs and sperm and professionally run surrogacy organisations in some foreign jurisdictions can deliver a much wanted baby. The best interests of that child then inevitably have to weigh into the equation, placing increasing pressure on governments and policy makers. The surrogate born child is biologically the child of one or both intended parents and its whole future, identity and human rights are then called into question in the event of conflicting international surrogacy laws, policy and practice which can threaten his/her right to family life.
Surrogacy in its widest sense is very different from adoption and private international children law as it applies to naturally conceived children. Surrogacy raises fundamental questions about the creation of human life, the remit and capability of fertility treatment and assisted reproduction techniques, altruism and commercialism, freedom of choice and the very powerful inherent human desire among increasing numbers of people to want to build a family through surrogacy and assisted reproduction when other options have failed.
Given the wide global differences in attitudes to surrogacy law, policy and practice is it feasible to achieve global regulation? Until we begin to get to grips with the issues surrogacy creates in its widest sense, it is difficult to see how any form of international regulation or consensus will be reached.