Gestational surrogacy is a relatively new method of procreation made possible by advances in assisted reproductive technology (ART). In gestational surrogacy, a woman (gestational carrier) gestates a fetus that is often biologically unrelated to her on behalf of a third party. While this form of procreation has often been celebrated for allowing infertile and fertility-challenged persons to parent biological offspring, it has also prompted a series of complex human rights-related debates. Inconsistent and extreme state responses to gestational surrogacy have led to myriad tragedies: states have arrested gestational carriers, forced carriers to raise children born through the process, denied individuals access to their biological offspring, refused to allow individuals to participate in the practice because of their sexual orientation, denied citizenship to children born through surrogacy arrangements, and in some cases, placed children in orphanages.
This Article argues that state responses to surrogacy raise serious questions about the state’s discretion to cabin and eliminate reproductive choice and autonomy. In responding to surrogacy, states have primarily acted with self-interest and with little consideration for the rights of parties to surrogacy practices, both within their jurisdictions and especially outside their borders. Through bans and restrictions on surrogacy, states have undermined their treaty This Article argues that state responses to surrogacy raise serious questions about the state’s discretion to cabin and eliminate reproductive choice and autonomy. In responding to surrogacy, states have primarily acted with self-interest and with little consideration for the rights of parties to surrogacy practices, both within their jurisdictions and especially outside their borders. Through bans and restrictions on surrogacy, states have undermined their treaty commitments to protect rights of reproduction, autonomy, choice, and non-discrimination, among others. A review of state reactions to surrogacy reveals that state interests (1) can be addressed without a deprivation of rights through proper internal regulation and inter-state cooperation, (2) are inappropriate in that they are based in impermissible discrimination and harmful stereotypes, or (3) are unjustified when placed in balance with the important rights at issue.
This Article will proceed as follows: Part I introduces the underlying problem and argument. Part II tells the story of A, C, and K, gestational carriers who were arrested in Cambodia in 2018, charged with human trafficking, and forced by the Cambodian government to raise the babies they birthed through the surrogacy process. Part III summarizes state bans and restrictions on surrogacy practices. Part IV considers the human rights at stake in surrogacy arrangements and the various perspectives and interests that have been advanced to justify curtailing those rights. It concludes that no justification withstands scrutiny when weighed against the benefits of this rights-enabling practice. Part V considers regulatory proposals, as well as whether a mandate exists within the human rights system for state cooperation on surrogacy arrangements. This final Part concludes that, while a clear mandate is not currently evident, one should exist as regulation is the only viable response to protecting and ensuring equal enjoyment of critical reproductive and related rights. True global enjoyment of human rights depends now, and will depend more and more, on how states respond to transnational human rights challenges like that of surrogacy; state cooperation across borders is and will become increasingly necessary to satisfy treaty commitments involving equal and full realization of fundamental rights.
"Accounting for the Selfish State: Human Rights, Reproductive Equality, and Global Regulation of Gestational Surrogacy,"
Chicago Journal of International Law:
2, Article 3.
Available at: https://chicagounbound.uchicago.edu/cjil/vol23/iss2/3