How does restrictive domestic legislation lead to poor outcomes for the surrogate, intended parents and child in International Surrogacy Arrangements? A case-study of the UK
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My name is Nicole Convill, I am 22 years old and I am from Holywood, Northern Ireland. I studied Law at Newcastle University and thoroughly enjoyed my time there as a student.
I participated in Erasmus and studied at Stockholm University in Sweden. During Erasmus I enrolled in the ‘family law across borders’ module which introduced to me to multijurisdictional family law issues, including cross-border reproductive care and surrogacy. Additionally, I have always been interested in medicine and the law, especially the important balance that must be struck to protect but also allow scientific advancement. As it is widely accepted that current UK surrogacy law needs reformation, I took a multi-disciplinary approach by discussing surrogacy through the lens of reproductive autonomy, assisted reproductive treatment and cross-border reproductive care.
I thoroughly enjoyed writing this piece and by applying medical sociology and bioethics I was able to create novel arguments. The piece’s publication comes at an interesting time due to the Law Commission finalising its surrogacy reform paper. I hope the law recognises its contribution to the negative outcome of poorly regulated international surrogacy arrangements and subsequently better supports intended parents, surrogates and the children in their surrogate journey.
- Nicole Convill, Author
Abstract
Surrogacy is just one form of assisted reproductive treatment (ART) that is utilised in order to address infertility issues in couples. Within the continued globalisation of ART, intended parents (IPs) are increasingly travelling abroad to engage in international surrogacy arrangements (ISA), particularly in response to domestic restrictive legislation.[1] This is a form of what Penning’s refers to as cross-border reproductive care (CBRC).[2] While CBRC can be likened to a ‘safety valve’ allowing individuals to exercise their reproductive autonomy as well as promoting a healthy degree of relativism, reliance on CBRC alone to achieve reproductive goals is undesirable.[3] CBRC contributes to governmental ignorance and creates an inequality of access (IOA). This IOA creates a diverging market and how this manifests will be considered within the context of ISAs.
Firstly, only IPs with a substantial income are able to engage in expensive, well-regulated ISAs. Acknowledging this, foreign reproductive clinics cut corners in attempt to reduce costs and promote mass affordability, creating a race-to-the-bottom market complex.[4] Cheaper options occur in jurisdictions with liberal ART regulations as clinics are not as strictly monitored.[5]It is in these circumstances that problems arise for the surrogate, IPs, and child. A comparison of the ISAs that occur in California and India bolsters these claims. The UK’s regulation of surrogacy highlights how strict regulations at home exports the majority of IPs abroad to poorly regulated ISAs. The thesis concludes with remedial responses to counteract the negative outcomes of poorly regulated ISAs.
[1] Francoise Shenfield et al, ‘Cross Border Reproductive Care in Six European Countries’ (2010) 25 Human Reproduction (Oxford) (6), pp. 1361–1368
[2] Ibid
[3] Guido Pennings, ‘Legal harmonization and reproductive tourism in Europe’ (2004) 19 Human Reproduction (12), 2689
[4] Ingrid Schneider, 'Race to the Bottom or Race to the Top? Governing Medical Tourism in a Globalised World' in Bronwyn Parry et all (eds), Bodies Across Borders The Global Circulation of Body Parts, Medical Tourists and Professionals (Taylor & Francis 2015)
[5] Andrea Whittaker, International surrogacy as disruptive industry in Southeast Asia (1st edn 2019, Rutgers University Press)
