The best interest of the child principle and the surrogacy motherhood

Abstract: Surrogacy is becoming more a common way of procreation not only for women and couples with medical conditions preventing them to conceive or to carry on pregnancy but for any other reasons. Incentives of the surrogate and the intended parents are clear from the beginning of their relationship. However, there is a child in the centre of this relationship, as the most vulnerable subject who is affected by the decisions of the adults without his own say. Irrespective of its attitude towards surrogacy, each country shall secure the rights and interests of the child born or child to-be-born to the surrogate. A general principle of the best interest of the child should be the leading principle in all decisions about the child. The paper focuses on the analysis of the best interest principle in general, in process of surrogacy, as well as on the assessing the principle during the surrogacy process in different countries.
Key words: surrogacy, child, the best interest principle

Abstrakt: ¹ Náhradné materstvo sa stáva čoraz bežnejším spôsobom počatia dieťaťa nielen pre ženy a páry, ktoré majú zdravotné ťažkosti, ktoré im bránia otehotnieť alebo donosiť dieťa, ale aj z iných dôvodov. Úmysel náhradnej matky, ako aj objednávateľov podstúpiť proces náhradného materstva je zrejmý od začiatku ich vzťahu. V centre tohto vzťahu je však dieťa ako najzraniteľnejší subjekt, ktorý je ovplyvňovaný rozhodnutiami dospelých bez možnosti vyjadriť svoj názor. Každá krajina by však bez ohľadu na svoj postoj k náhradnému materstvu mala zabezpečiť náležitú ochranu práv a právom chránených záujmov dieťaťa, ktoré sa narodilo alebo ktoré sa malo narodiť v dôsledku zmluvy o surogácii. Princíp najlepšieho záujmu dieťaťa by mal byť hlavným princípom pri všetkých rozhodnutiach týkajúcich sa dieťaťa. Príspevok sa zameriava na analýzu princípu najlepšieho záujmu všeobecne, na proces náhradného materstva, ako aj na vyhodnotenie aplikácie tohto princípu v procese surogácie v rôznych krajinách.
Kľúčové slová: náhradné materstvo, dieťa, princíp najlepšieho záujmu dieťaťa

1. Introduction

Surrogacy is becoming more a common way of procreation not only for women and couples with medical conditions preventing them to conceive or to carry on pregnancy but for any other reasons. It has a growing popularity among male same-sex couples, as well, since there is no possibility to have children of their own naturally. Assisted reproduction technologies enable surrogate to carry on a child who is genetically not related to her and is genetically related to the intended parents, or at least one of them. Genetic link between the child and the intended parents is one of the reasons surrogacy is becoming more popular. Another reason is less restrictive legal regulation, length of procedure and costs which are comparable to adoption. It has been said that a high amount of money is available in the surrogacy “market” all around the world, and it is often labelled as a multi-million dollar market.² Cottingham states that the worth of the commercial surrogacy industry is estimated at around 2.3 billion dollars annually and it is said to be underestimated.³ However, other commentators argue that this number is accurate only for the surrogacy services in India.⁴ Mohapatra claims that the market for international surrogacy is estimated to be six billion dollars annually worldwide.⁵

The most general definition of surrogacy is that it is an arrangement whereby a woman agrees to become pregnant and deliver a child for a contracted party. Gervasi explains that surrogate motherhood or surrogacy refers basically to a woman who bears a child on behalf of someone else and hence relinquishes her parental rights.⁶ Historically, surrogacy was meant to enable infertile heterosexual couples to become parents. However, as the society has been changing and the change challenges the understanding of traditional family consisting of mother and father, the more detailed definitions of surrogacy may vary in different jurisdictions.

Nowadays, there are many different models of surrogacy, which may be distinguished from different points of view. According to the existence of a genetic link between the surrogate and the baby she carries surrogacy is gestational (full) or traditional (partial). While traditional surrogacy requires surrogate to be the genetic mother of the child as her own ova are used to conceive the child, gestational surrogacy is defined as an arrangement in which an embryo from the intended parents or a donated oocyte or sperm is transferred to the surrogate uterus⁷. According to the existence of a medical reason for surrogacy, surrogacy is medical if there is a medical indication for surrogacy – intended mother has a medical condition because of which she is not able to carry and deliver the child at all or without significant risk to her health. On the other hand, in social surrogacy, there is no medical reason for surrogacy, but it is more convenient for the intended mother/parents. If the habitual residence or domicile of the intended parents and the surrogate is the distinguishing criteria, surrogacy is domestic, if at least one of the intended parents is habitual resident or has domicile in the state surrogacy agreement is undertaken or where the artificial insemination takes place. In any other case, surrogacy may be referred to as an international.

Another distinguishing criterion lies in monetary compensation to the surrogate. Thus, surrogacy may be altruistic or commercial. Recently, terminology regarding monetary compensation and types of surrogacy has been slightly modified to altruistic, compensated and commercial, as it seems to be more accurate. Fenton-Glynn and Scherpe define altruistic surrogacy as the one which is not commercial but still leaving room for certain expenses to be paid.⁸ Setting regulation of surrogacy in Greece as an example they explain that if the remuneration is promised to the surrogate, surrogacy is commercial and forbidden, but reimbursement of the cost related to achieving pregnancy, pregnancy itself and post partum period is legal, and surrogacy is thus compensated⁹. Based on the above, compensated surrogacy may be described as the one where surrogate gets reasonable payment for her expenses. Any payment exceeding the reimbursement for reasonable expenses means surrogacy is commercial. Walker and van Zyl relate commercial surrogacy to a simple contract where parties agree to exchange a specific product or service for money; both parties are assumed to be motivated by personal gain and given that each has something the other wants.¹⁰

Regarding surrogacy, the law must provide safeguards for different subjects participating in this relationship, whether legal or de facto only. Parties to the surrogacy arrangements, the surrogate and the intended parents¹¹, make decisions that will affect not only their lives but also the life of the child born to the surrogate or child-to-be-born to the surrogate, depending on circumstances. The child is in the centre of this relationship and is the most vulnerable subject, so other subjects must ensure his rights and interests are protected in the process. The most common concern regarding surrogate is her exploitation, the most common concern regarding the child is commodification and trafficking. Concerns regarding children may be, in our opinion, diminished by proper legal regulation and proper assessment of the child´s best interests in the process of establishing the intended parents´ legal parenthood.

2. Best interest of the child in general

The best interests principle has arisen as the primary standard for determining children´s legal rights and interests because children are assumed to lack capacity and therefore legal standing.¹² Zermatten argues that the principle is based upon the recognition that an adult is only in a position to take decisions on behalf of a child because of the child´s lack of experience and judgment.¹³ The best interest principle has become legally binding principle 30 years ago when the Convention on the Rights of the Child was adopted by the United Nations (hereinafter referred to as “the Convention”) in 1989.¹⁴ The Convention has become the most widely ratified human rights treaty in history¹⁵ and the best interests principle is one of the leading principles of the Convention. Article 3 para 1 of the Convention provides the basic rule regarding children: in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Under Article 18 para 1 of the Convention parents are identified as having primary responsibility for the upbringing and development of the child’ and that the ‘best interest of the child will be their basic concern.

The best interests principle is also subject to criticism in many ways. As Reece argues the problems with applying the paramountcy principle are seen as rooted in its indeterminacy: while everybody agrees that children's welfare should be paramount, nobody knows what children's welfare demands.¹⁶ It is true that the principle does not have specific content and can be described as indeterminate. Such an approach may cause inconveniences in determining what aspects should be considered when identifying the child´s best interests. On the other hand, since the Convention is meant to be a long-term instrument for the protection of the children, it would be unreasonable to define the principle which content may change over the years. Also, there are still many cultural differences between the contracting parties all over the world which may cause difference in assessing the child´s best interests. Of course, a minimal standard should be set for all cultures, but contracting parties should have a certain degree of discretion. It is also stressed out that the best interests principle is important as it allows children to become successful adults.¹⁷ Again, Reece notes that this argument is self-defeating because it makes the importance of childhood contingent on, and subordinate to, the importance of adulthood: if decisions are made which sacrifice adults' interests to children's interests, there is little point becoming a successful adult11.¹⁸ In our opinion, it is not completely about the sacrifice of the adults' interests, it is about finding the proper balance between the interests of the children and the adults. Sometimes, adults´ interests must go aside since the adult can protect them and the child is not able to protect his. But it does not mean a compromise may not be found to satisfy all the parties to a certain extent. We strongly agree with Pennigs who says we shall not expect parents to live their lives with the sole purpose of maximizing the welfare of their children, even if this means that their own life plans are thwarted.¹⁹

In surrogacy, and reproductive technologies in general, many difficulties arise with many questions coming to one´s mind when considering the best interests principle. Cohen argues that there is a difference between applying the principle in family law and family autonomy and in reproductive law and reproductive autonomy.²⁰ He sees a logical problem with the principle playing role in reproductive autonomy because the best interests’ framework is meant to be applied to already existing children, not to determine whether allowing conception to occur would be in the best interests of any resulting children. Similarly, Grodin asks how one assesses the best interests of the child when that child has yet to even have been created.²¹ At the time, we do not know anything about the health or mental condition of the child-to-be-born, so the best interests may be determined mostly generally and mostly with assessing a child´s parents-to-be. Yet, another difficulty is that there are no reliable predictive criteria for inadequate parenting and, thus, no criteria that can be used to guarantee the best interests of the child.²² Lind points out, the status of the best interests of the child principle in assisted reproduction cannot be taken for granted to be the same as in other areas of family, child welfare or protection policies as the rights of the adults in assisted reproduction are reproductive, rather than parental.²³ This may be accurate just partially, as the future well-being of the child will be assessed mostly via the ability of the parents to secure this well-being.

The best interests of the child in cases of surrogacy may be evaluated from different points of view. The basic line of assessing the best interest of the child regarding surrogacy and the child-to-be-borne should be to prevent the harmful consequences of surrogacy to the child. Firstly, the physical needs of the child, as the nutrition and care, may be evaluated.²⁴ It may be assumed that if the intended parents decide for surrogacy, finances would not be the problematic part. However, lack of resources is not a reason to consider any parent incapable to raise the child. Secondly, the emotional needs of the child shall be evaluated. Every child deserves to live in a caring and loving family with possibilities for his future development and education. The best principle also incorporates the child’s right to know about his origins, which includes also the child´s interest to a genetic tie. Possible harm to the child´s physical and psychological welfare and his human dignity should be evaluated as well. Human dignity argument may prevent the child from being viewed as a commodity. Most of the countries prohibiting commercial surrogacy lists human dignity as a major reason for its prohibition.

The question we ask in the paper is what the best interests of the child are once he is born to the surrogate and how the best interests principle is considered in different countries legally allowing surrogacy.

3. Best Interest of the Child Assessment in Surrogacy Procedure in Different Countries

European Court of Human Rights (ECtHR) in his historically first advisory opinion delivered on April 10th 2019²⁵ states that in order to answer the questions of the French cassation court undertook a comparative-law survey covering forty-three contracting parties of the European Convention on Human Rights on the regimes of the surrogacy arrangements. According to the ECtHR findings surrogacy arrangements are permitted in nine of these forty-three States. Out of these countries we have chosen the United Kingdom and Greece for our research. Out of European countries we will analyse legislation and judiciary in California and Israel. Each country we have chosen for our research has different approach to surrogacy arrangements, so we have analysed how the best interest principle of the child is considered throughout the surrogacy process.

3.1 California

In the United States of America (the USA), there is no federal law governing surrogacy. Surrogacy is governed at each state´s level, so legislation varies from state to state. California is known as particularly friendly towards surrogacy in general (Berk, 2015:146; Beir, 2018:296). Commercial surrogacy, gestational and traditional surrogacy, international surrogacy, same-sex surrogacy and social surrogacy is allowed under the Californian law. Surrogacy is governed by the California Family Code (CFC), specifically by the Uniform Parentage Act (the UPA).²⁶ Section 7962 CFC states that a contract of gestational surrogacy is valid and gives custody to right to the intended parents as long as the contract meets requirements set by the CFC. As to the best interest of the child principle, there is no regulation referring specifically to the surrogacy. There is a provision of the section 3020 CFC which states that the best interests of children must be taken into account when making any orders regarding the physical or legal custody or visitation of children. The court must ensure the health, safety, and welfare of children shall be the court’s primary concern when delivering decision on custody.

Surrogacy contracts are enforceable, so if any party to the contract breaks the contract, the other party may sue for the enforcement. But what if the contract enforcement violates child-to-be-born´ best interests?

The question whether the best interest of the child should prevail over the enforceable surrogacy contract was raised in Californian case M.C. v C.M.²⁷ In the case, surrogate gave birth to the triplets as a result of surrogacy contract concluded with the intended parent a 50-year-old deaf-mute man who lived in his parents´ basement and worked as a postal worker. During the pregnancy, the intended parent repeatedly asked the surrogate to abort one or more of the foetuses as he declared incapability of caring for all three children. Surrogate refused and when the intended father filed the petition for a pre-birth order, she filed a counterclaim alleging that the intended parent is not capable of raising the children. However, the Californian court of the first instance, as well as the appellate court, held that the statute requires a court to enforce the contract despite objections by the mother, despite any parental unfitness of the intended parent, and regardless of whether enforcement of the contract is contrary to the children’s best interests.

The way Californian case law and statutory law looks at the child-to-be-born out of surrogacy and considers the best interests of the child principle may lead to the conclusion that the enforceability of the contract is the highest paramount in the surrogacy cases. Comparing to other jurisdictions this may seem inappropriate way to protect best interests of the child, as the court is the only subject which can act on behalf of the child and take into consideration his future best interest. Otherwise, there is a risk children become commodity at the market.

3.2 The United Kingdom (the UK)

The UK allows surrogacy motherhood since 1985 when the Surrogacy Arrangements Act was adopted. Only medically indicated and non-commercial surrogacy is allowed in the UK. There are no legal requirements for a woman who wants to be a surrogate mother, surrogacy arrangements are not enforceable. There is no state interference within the contracting process between the surrogate and the intended parents. Surrogate is the child´s legal mother once he is born. State involves in the surrogacy process only after the child is born and intended parents apply for a parental order. Parental order is a specific court decision by which parental rights and duties are transferred from the surrogate to the intended parents. Requirements for awarding parental order are governed by the Human Fertilisation and Embryology Act (the HFEA).

Under the UK law, parental order maybe be granted if the pregnancy of the surrogate was achieved by any method of medically assisted reproduction under the provisions of the HFEA. The best interest of the child is under the UK law emphasized even before the treatment by any method of medically assisted reproduction is provided, as the HFEA in its section 13 para. 5 states: A woman shall not be provided with treatment services unless an account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for supportive parenting), and of any other child who may be affected by the birth. Definition of supportive parenting can be found in the Code of Practice issued by the Human Fertilisation and Embryology Authority (hereinafter referred to as “the Code”).²⁸ The Code defines supportive parenting as a commitment to the health, wellbeing and development of the child. It is presumed that all prospective parents will be supportive parents, in the absence of any reasonable cause for concern that any child who may be born, or any other child, may be at risk of significant harm or neglect. Where centres have concern as to whether this commitment exists, they may wish to take account of wider family and social networks within which the child will be raised.²⁹ Furthermore, the Code in paras 8.9 to 8.13 provides guidance for the welfare of the child assessment process for surrogacy arrangements and in guidance note 14 provides rules for surrogacy as such. Rules of the child´s welfare assessment stated in the Code are of high importance since the UK legislation does not provide any other specific eligibility criteria for the surrogate or the intended parents before the child´s conception.³⁰ It is also important because it requires that the centre providing assisted reproduction services should also take into account the possibility of a breakdown in the surrogacy arrangement³¹. If this is the case, the surrogate decides to keep the child born as a result of surrogacy arrangements with the intended parents. Under article 13 para. 5 of the HFEA the centre has the obligation to evaluate whether the breakdown is likely to cause a risk of significant harm or neglect to any child who may be born or to any existing children in the surrogate’s family.³² The concept of the welfare of the child as set in the Code does not only focus on the child-to-be-born to the surrogate, but also to any other children within her family. There is no doubt that surrogacy motherhood has a great influence on the children of the surrogate, so it should be appreciated their interests are protected as well.

However, regarding the best interests of the child-to-be-born to the surrogate, Jackson (2002) argues that article 13 para. 5 of the HFEA is unfair and unjust towards the people who may not conceive naturally and have to use assisted reproduction services to become parents. She also argues that physicians providing infertility treatment are not able to make a proper assessment to distinguish fit and unfit parents-to-be as they do not receive training in assessing future parenting ability, and nor will they have access to the sort of detailed information that ought to inform such a complicated assessment.

Jackson³³ also points out that English case law shows that the best interests of the child is the court’s paramount consideration and court grants parental order also in the cases where the statutory law was not followed, specifically in the cases if the payment to surrogate excessed expenses reasonably incurred.^{34 35} In Re P-M ³⁶ court also ruled that where the welfare of the child demands that an order should be made, the Court would only in the clearest case of abuse of public policy consider not making an order. Unless the clearest case of abuse of public policy is proven, parental order should be granted in every case providing it in the child´s best interests. It seems that the best interests’ principle has been applied by the English courts in a very broad sense and it can justify also the breach of statutory law. Such an approach has been criticised by Norrie³⁷, Trimmings³⁸ or Fenton-Glynn³⁹.

In determining whether a parental order may be awarded, the court must consider requirements stated in the article 54 or 54a of the (HFEA) but also the matters stated in section 1 para. 4 of the Adoption and Children Act often entitled as the Welfare Checklist.⁴⁰ As the welfare of the child has to be considered from a lifelong perspective, rather than just through childhood, the welfare of the child is no longer simply one consideration among many, but rather the consideration which should override all others.⁴¹

When it comes to the best interests´ principle, in the case of the United Kingdom, the emphasis on the best interests of the child shall be highly appreciated, mainly in comparison the legal regulation of surrogacy in California, where the child himself seems not to get much consideration when enforcing the surrogacy contract. On the other hand, the application of the best interest principles by the English courts may be viewed as problematic. As Fenton-Glynn and Scherpe point out: While the elevation of the child’s welfare to the paramount concern is laudable, it has undermined the ability of the courts to refuse a parental order.⁴²

3.3 Israel

In Israel, surrogacy is governed by the Surrogate Motherhood Agreements (Approval of the Agreement and Status of the Child) Act of 1996⁴³ (the Surrogate Act). The Surrogacy Act is meant for women in the fertile age who are unable to be impregnated and to carry a pregnancy or if a pregnancy might significantly risk their health.⁴⁴ The Surrogate Act consists of two parts – first part governs surrogate agreement and its approval by the Committee for Approval of Surrogacy Agreements (the Approval Committee) which must be granted before the surrogate´s fertilisation, and the second part governs the statute of the child born to the surrogate and transfer of legal parenthood to intended parents which may be established only by the court order.

Best interests of the child under Israeli surrogacy law must be considered before the child is born, as well as after the child is born. Before the child is born, the Approval Committee has to do the evaluation after the application for approval of the surrogate motherhood agreement is submitted. The Approval Committee may grant its approval of the surrogate arrangement only if there are no misgivings about the well-being of the child that will be born.⁴⁵ In order to do this, the Committee is obliged to assess not only medical suitability of the parties to the surrogacy agreement, but parties have also to undergo a psychological evaluation of the suitability to the procedure.⁴⁶ The Committee has to hear all the parties to the surrogate agreement and may demand any additional material from the parties, as well as hear any other person.⁴⁷ Schuz points out that the Committee has to protect four categories of children´s rights: the child´s physical health, future welfare, legal status and right to privacy.⁴⁸ Physical health of the child is protected by the thorough medical examinations of the surrogate and the intended parents. Teman argues that unofficial Approval Committee guidelines specify that a prospective surrogate cannot be selected for this role if one of her own children is mentally or physically disabled or if she herself has a personal medical history of diabetes or any renal, hepatic, or hematologic condition.⁴⁹ After the child is born, the court has also a duty to examine if the parental order will be in the child´s best interests. Consideration of the best interests of the child might, in any event, justify a refusal of the court to issue a parenthood order in favour of the intended parents.⁵⁰

3.4 Greece

In Greece, surrogacy is allowed since 2002 after the amendment of the Greek Civil Code (Presidential Decree no. 456/1984) by the Act no. 3089/2002 on Medically Assisted Human Reproduction.. The main legal regulation of the surrogacy can be found in several legal acts: the Greek Civil Code, Act no. 3089/2002 on Medically Assisted Human Reproduction and Act no. 3305/2005 on Enforcement of Medically Assisted Reproduction. Altruistic, gestational and based on medical reasons surrogacy is allowed in Greece. Surrogacy contract signed by the surrogate and the intended parents is valid and enforceable presuming it has been authorized by the competent court prior to the transfer of the reproductive material to the surrogate.

As to the best interests principle, article 1 para. 2 of the Greek law no. 3305/2005 on Enforcement of Medically Assisted Reproduction provides that during the application of medically assisted reproduction methods the interests of the child to be born should be particularly taken into account.⁵¹ The existence of a stable and supporting environment for every child that shall be born is a crucial factor; furthermore, several other factors regarding the intended parents are of importance, such as their age, their medical history, possible hereditary disease risk as well as their capability to fulfil the needs of the child they wish to have.⁵² Horsey & Frith even claim that the importance of the best interest of the child arguably makes it very unlikely for any surrogacy contract not to be approved, even in retrospect, or for any actions to be considered as willingly circumventing the law.⁵³

Unlike in California, the Greek model of surrogacy concerns more about the protection of the child´s best interests than the surrogacy contract enforcement. In our opinion, Greece has decided to protect the most vulnerable subject of the surrogacy relationship. Intended parents, who are adults with full legal capacity, can protect their rights in more proper way as the child born to the surrogate.

Conclusion

One of the major question surrogacy legislation has to deal with is the best interest of the child born via surrogacy. The best interests of the child should be the primary consideration in all cases regarding the child, including surrogacy, without need for specific national legislation on the issue. Obligation to respect and implement the best interests principle has been imposed to the states by the international treaty which makes it legally binding and in most cases, it means this principle has precedence over the national legislation.

Different models of surrogacy deal with the issues in a different way. From the research we have made and presented in this paper, we can conclude, that the higher level of the intended parents’ protection, the less focus on the best interests of the child. The surrogacy model, as set in California, seems to be very profound of the surrogacy contract and prefers the performance of contractual obligations over the best interest of the child. Such an approach may lead to the situations that despite the incapability of the intended parents to take proper care of the child, the legal parenthood of the intended parents will be established. On the other hand, too much emphasis on the best interests principle in practice, as seen in the United Kingdom, makes rules regulating surrogacy set down by the legislation ineffective. As a result, subjects to the surrogacy arrangement may come to the conclusion that it is not necessary to follow the legal rules governing surrogacy, as long the best interests principle is followed since the court will transfer legal parenthood to the intended parents anyway. As we can see, it is extremely difficult to set the proper balance of the interests of the surrogate, intended parents and the child born to the surrogate. However, the rules need to be set to discourage any misconduct and the abuse of all the subjects involved in the surrogacy arrangements.

Mgr. Lenka Dufalová PhD.
Univerzita Komenského v Bratislave, Právnická fakulta

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WALKER, R. & VAN ZYL, L.: Beyond Altruism: A Case for Compensated Surrogate Motherhood. In SHAW R. (ed.): Bioethics Beyond Altruism. Donating and Transforming Human Biological Materials. Cham, Switzerland: Palgrave Macmillan, 2017.

ZERMATTEN, J.: The best interests of the child principle: Literal analysis and function. In International Journal of Children’s Rights, 2010, 18 (4), p. 483–499.

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Notes

¹ The paper was supported by the project of the Scientific Grant Agency of the Ministry of Education, Science, Research and Sport of the Slovak Republic and Slovak Academy of Sciences VEGA no. 1/0530/20.
² DEONANDAN R.: Recent Trends in Reproductive Tourism and International Surrogacy: Ethical Considerations and Challenges for Policy. In Risk Management and Healthcare Policy. 2015, č. 8., p. 111. BROMFIELD, N.F. & ROTABI, K.S.: Global Surrogacy, Exploitation, Human Rights and International Private Law: A Pragmatic Stance and Policy Recommendations. In Global Social Welfare. 2014, 1 (3), p. 123., RUDRAPPA, S. & COLLINS, C.: Altruistic Agencies and Compassionate Consumers: Moral Framing of Transnational Surrogacy´, Gender & Society. 2015, 29 (6), p. 937.
³ COTTINGHAM, J.: Babies, Borders and Big Business. In Reproductive Health Matters. 2017, 25 (49), p. 17.
⁴ TWINE, F.W.: Outsourcing the Womb: Race, Class, and Gestational Surrogacy in a Global Market. 2nd edition. New Your: Routledge, 2015. SHETTY, P.: India's unregulated surrogacy industry. In Lancet. 2012, 380 (9854), 1633-34.
⁵ MOHAPATRA, S.: Achieving Reproductive Justice in the International Surrogacy Market. In Annals of Health Law. 2012, 21 (1), 191-200.
⁶ GERVASI, M.: The European Court of Human Rights and Technological Development. The Issue of the Continuity of the Family Status Established Abroad Through Recourse to Surrogate Motherhood. In Diritti Umani e Diritto Internazionale, Rivista quadrimestrale. 2018, 12 (2), p. 213.
⁷ PATEL, N. H. et al.: Insight into Different Aspects of Surrogacy Practices. In Journal of human reproductive sciences. 2018, 211 (3), p.212.
⁸ FENTON-GLYNN, C. & SCHERPE, J.M.: Surrogacy in s Globalised World: Comparative Analysis and Thoughts on Regulation. In SCHERPE, J.M., FENTON-GLYNN, C., KAAN, T. (ed.): Eastern and Western Perspectives in Surrogacy. Cambridge, UK: Intersentia, 2019, p. 530.
⁹ It should be noted that in different jurisdictions, terms compensated and commercial may refer to our understanding of commercial surrogacy, e.g. USA, Australia. For more information see FINKELSTEIN, A. et al.: Surrogacy Law and Policy in the U.S.: A National Conversation Informed by Global Lawmaking. In Columbia Law School Sexuality & Gender Clinic, 2016. NEWSON, A.J.: Compensated transnational surrogacy in Australia: time for a comprehensive review. In The Medical Journal of Australia. 2016, 204 (1), 33-35.
¹⁰ WALKER, R. & VAN ZYL, L.: Beyond Altruism: A Case for Compensated Surrogate Motherhood. In SHAW R. (ed.): Bioethics Beyond Altruism. Donating and Transforming Human Biological Materials. Cham, Switzerland: Palgrave Macmillan, 2017, p. 169.
¹¹ For the purposes of this paper, term intended parents is used to define party of the surrogacy arrangements with the surrogate in order to become parents of the child-to-be-born to the surrogate, usually using a method of assisted reproduction. Terms intended parents and commissioning parents mean the same for the purposes of this paper. Term intended parents includes also single persons.
¹² DALY, A: Children, Autonomy and the Courts: Beyond the Right to be Heard. Brill: Leiden/Boston, 2017, p. 71.
¹³ ZERMATTEN, J.: The best interests of the child principle: Literal analysis and function. In International Journal of Children’s Rights, 2010, 18 (4), p. 485.
¹⁴ Before that, the Declaration of the Rights of the Child drafted by the United Nations in 1959 also stated that the best interests of the child shall be the paramount consideration in the enactment of laws relating to children, who shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. The best interests of the child shall be the guiding principle of those responsible for his education and guidance, as well. The Declaration of the Rights of the Child, unlike the Convention, is a non-binding document.
¹⁵ 196 countries have become State Parties to the Convention as of October 2015. Only the United States of America has not ratified the Convention. https://www.unicef.org/child-rights-convention Accessed 04.07.2019
¹⁶ REECE, H.: The Paramountcy Principle: Consensus or Construct? In Current Legal Problems, 1996, 49 (1).
¹⁷ FREEMAN, M.: Commentary on the United Nations Convention on the Rights of the Child. Article 3: The Best Interests of the Child. Leiden: Martinus Nijhoff, 2017.
¹⁸ REECE, H.: The Paramountcy Principle: Consensus or Construct? In Current Legal Problems, 1996, 49 (1).
¹⁹ PENNINGS, G.: Measuring the welfare of the child: in search of the appropriate evaluation principle. In Human Reproduction. 1999, 14 (5),
²⁰ COHEN, G. I.: Regulating Reproduction: The Problem with Best Interests. In Minnesota Law Review, 2011, 96.
²¹ GRODIN, M.A.: Surrogate Motherhood and the Best Interests of the Child. In Women´s Health Issue. 1991, 1 (3).
²² HARRIS, J, DALTON, M. & JACKSON, J.G. (eds.): Wrongful Birth. In Philosophical Issues in Reproductive Medicine. Manchester University Press, Manchester, 1990.
²³ LIND, J.: The Rights of Intended Children: The Best Interests of the Child Argument in Assisted Reproduction Policy. In Childhood, 2019, doi:10.1177/0907568219853331
²⁴ Following list is not made in order of importance.
²⁵ ECtHR [GC], Advisory Opinion Concerning the Recognition in Domestic Law of a Legal Parent-Child Relationship Between a Child Born Through a Gestational Surrogacy Arrangement Abroad and the Intended Mother, Request no P16-2018-001 by the French Court of Cassation, 10 April 2019.
²⁶ The Uniform Parentage Act was enacted in 1973 by the Uniform Law Commission to protect the rights of “non-marital” or “illegitimate” children by separating the parent-child relationship from the parents’ marriage (Reagan, 2019:2167). Before the UPA, a child born out of wedlock did not have the right to support and inheritance from their biological father because only the mother was the legal parent (Jacobs, 2002:370). The Uniform Parentage Act was incorporated into the California Family Code as its sections 7600 – 7730 in 1992 and it has been subject to several amendments since 1973.
²⁷ C.M. v. M.C., 7 Cal. App. 5th 1188 (Ct. of Appeal, Div. 1, Cal. 2017) available at https://law.justia.com/cases/california/court-of-appeal/2017/b270525.ht…
²⁸ In 2019 9th edition of the Code of Practice was issued by the Human Fertilisation and Embryology Authority.
²⁹ The Code of Practice, para 8.15.
³⁰ After the child is born, eligibility criteria for intended parents which file an application for the parental order are stated in sections 54 and 54a of the HFEA.
³¹ Para 8.9.
³² Ibid.
³³ JACKSON, E.: Medical Law: Text, Cases and Materials. 4th edition. Oxford: Oxford University Press, 2016.
³⁴ As the Jackson notes, in the case of payments, the UK statute specifically allows for judicial discretion – section 54 para 3 HFEA. See also cases of Re S (Parental Order) [2009] EWHC 2977 (Fam) and Re L (A Minor) [2010] EWHC 3146 (Fam)
³⁵ In Re X (A Child) (Surrogacy: Timelimit) [2014] EWHC 3135 (Fam) court ruled that time limit for the parental order application as set by the section 54 para 3 HFEA (Except in a case falling within subsection (11) the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born) might be extended, as Sir James Munby P held: section 54(3) does not have the effect of preventing the court making an order merely because the application is made after the expiration of the six month period.
³⁶ [2013] EWHC 2328 (Fam)
³⁷ NORRIE, K.: Surrogacy in the United Kingdom: An Inappropriate Application of the Welfare Principle. In SUTHERLAND, E. & L. BARNES MACFARLANE (Eds.): Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-being. Cambridge: Cambridge University Press, 2016.
³⁸ TRIMMINGS, K.: Six month deadline for applications for parental orders relaxed by the High Court. In Journal of Social Welfare and Family Law. 2015, 37 (2), 241-43.
³⁹ FENTON-GLYNN, C.: The difficulty of enforcing surrogacy regulations. In Cambridge Law Journal. 2015, 74 (1), 34-37.
⁴⁰ The Welfare Checklist includes the wishes and feelings of the child with regard to his or her age and level of understanding; the child’s particular needs, his physical, emotional and educational needs; the likely effect on him of any change in his circumstances; his age, sex, background and any characteristics of his which the court considers relevant; any harm which he has suffered or is at risk of suffering; how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; the range of powers available to the court under this Act in the proceedings in question.
⁴¹ ALGHRANI, A., GRIFFITHS, D.: The regulation of surrogacy in the United Kingdom: the case for reform. In Child and Family Law Quarterly. 2017, 29 (2), 165-86.
⁴² FENTON-GLYNN, C., SCHERPE, J.: Surrogacy: Is the law governing surrogacy keeping pace with social change? 2017. Available at: https://www.law.cam.ac.uk/sites/www.law.cam.ac.uk/files/images/www.fami…
⁴³ Other translations are: Agreements for the Carriage of Foetuses (Approval of Agreement and Status of the New Born) Law 1996 used by the Israeli Ministry of Health (https://www.health.gov.il/English/Topics/fertility/Surrogacy/Pages/defa…) or Embryo Carrying Agreement (Authorization Agreement & Status of the New-born Child) Act of 1996 (....................)
⁴⁴ https://www.health.gov.il/English/Topics/fertility/Surrogacy/Pages/defa…
⁴⁵ Section 5(a) (2) of the Surrogacy Act
⁴⁶ Ibid, section 4 (a) (4)
⁴⁷ Ibid, section 4 (2)
⁴⁸ SCHUZ, R.: Israel [in] SCHERPE, J., FENTON-GLYNN, C., KAAN, T. (ed.): Eastern and Western Perspectives in Surrogacy. Intersentia, Cambridge, 2019.
⁴⁹TEMAN, E.: Surrogacy in Israel: State-Controlled Surrogacy as a Mechanism of Symbolic Control. In Sills, Eric Scott (ed.) Handbook of Gestational Surrogacy: International Clinical Practice & Policy Issues. Cambridge: Cambridge University Press, 2016, p. 169.
⁵⁰ SHAVEL, C.: Surrogacy in Israel´ In: Moneger, F. (ed.): Gestation pour Autrui – Surrogate Motherhood, Edition: Colloque vol. 14, Paris: International Academy of Comparative Law, 2011.
⁵¹ CHORTARA, T., PENESA, S., BUSATTA, L.: The best interests of the child born via cross-border surrogacy. A comparison between Greece and Italy. In BioLaw Journal – Rivista di BioDiritto. 2016, 3 (1), p. 191.
⁵² RAVDAS, P.: Surrogate Motherhood in Greece: Statistical Data Derived from Court decision. In Bioethica. 2017, 3 (2), p. 45.
⁵³ HORSEY, K., FRITH, L.: The fertility treatment time forgot: What should be done about surrogacy in the UK?. In HORSEY, K. (ed.) Revisiting the Regulation of Human Fertilisation and Embryology. New York: Routledge, 2015, p. 124.