Tina Lin, Stateless Children

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BORN LOST: STATELESS CHILDREN IN INTERNATIONAL SURROGACY ARRANGEMENTS

Tina Lin* TABLE OF CONTENTS I. II. INTRODUCTION ........................................................................ 545 CONFLICT OF LAWS ................................................................. 550 A. The Rise of International Commercial Surrogacy ....... 550 B. Citizenship Laws .............................................................. 555 C. The Meaning of Statelessness ......................................... 558 DIFFICULTIES IN DEVELOPING AND IMPLEMENTING DOMESTIC AND INTERNATIONAL REGULATIONS ................ 561 A. Indian Efforts at Domestic Legislative Reform ........... 561 B. Proposals for International Regulation ......................... 565 DOMESTIC COURTS: THE REMAINING REMEDY .................. 569 A. Judicial Approach in India.............................................. 570 B. Judicial Approach in England and Wales ..................... 574 C. Adopting the Best Interests of the Child Standard in Receiving Countries .................................................... 579 D. Adopting the Best Interests of the Child Standard in Countries of Origin ...................................................... 583 CONCLUSION ............................................................................ 586 I. INTRODUCTION Surrogacy, [t]he process of carrying and delivering a child for another person, 1 has become a popular solution for infertile and same sex individuals who desire a child of their own. 2 However,
* Candidate for Juris Doctor, Benjamin N. Cardozo School of Law, May 2013. I thank Professor Sheri Rosenberg for her guidance and comments on this Note. 1 BLACKS LAW DICTIONARY 1485 (8th ed. 2004). 2 Mark Hansen, As Surrogacy Becomes More Popular, Legal Problems Proliferate, A.B.A. J. (Mar. 1, 2011, 6:40 AM), http://www.abajournal.com/magazine/article/as_surrogacy_becomes_more_popular_legal_
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surrogacy encompasses a host of legal (and medical) complications. 3 The legal issues include establishing legal parentage, 4 facing fraudulent arrangements, 5 and resolving contractual disputes. 6 If the couple travels abroad to find a surrogate, there is the additional difficulty of complying with the laws and regulations of that country. Amidst these complications, one challenge that intended parents are likely unprepared for is what to do when the child is born stateless. 7 The lack of international consensus on the legality of surrogacy has resulted in the birth of children who are not recognized as citizens by any nation. 8 Without a government to issue the child traveling papers or a passport, the child remains in legal limbo. 9 This was the situation faced by Samuel Ghilain, a child born in Ukraine to a surrogate commissioned by his intended parents, Laurent Ghilain and Peter Meurrens, a pair of married men from Belgium. 10 Although adoption by same sex couples is legal in Belgium, 11 Ghilain and Meurrens were frustrated by the administrative difficulties of adoption and turned to surrogacy. 12 After researching surrogacy agencies and consulting with the Belgian authorities, they hired a surrogate in Ukraine to carry the embryo, created from Ghilains sperm and an anonymous donors
problems_proliferate/. 3 Id. 4 In re Baby M, 537 A.2d 1227 (N.J. 1988). 5 Surrogacy Scam Played on Emotions of Vulnerable Victims, FED. BUREAU OF INVESTIGATION (Sept. 13, 2011), http://www.fbi.gov/news/stories/2011/september/surrogacy_091311/surrogacy_091311. 6 A.G.R. v. D.R.H., No. FD-09-1838-07 (N.J. Super. Ct. Ch. Div. Dec. 23, 2009), http://graphics8.nytimes.com/packages/pdf/national/20091231_SURROGATE.pdf. 7 A stateless person is one who is not considered as a national by any State under the operation of its law. Convention Relating to the Status of Stateless Persons art. 1, Sept. 28, 1954, 360 U.N.T.S. 117. 8 See, e.g., Kai Kstner, Twins Born to a Surrogate Mother Are Stateless, DEUTSCHE WELLE (Mar. 5, 2010), http://www.dw.de/dw/article/0,,5325889,00.html. 9 Problems Faced by Stateless People, UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, http://www.unhcr.org/pages/49c3646c161.html (last visited Sept. 27, 2012) (International travel becomes almost impossible if you cannot obtain a passport or other travel document.). 10 Don Melvin, Baby, Stranded in Ukraine, to Join Belgian Parents, GUARDIAN (Feb. 21, 2011), http://www.guardian.co.uk/world/feedarticle/9511401. 11 Belgium Passes Gay Adoption Law, BBC NEWS (Apr. 21, 2006, 8:45 AM), http://news.bbc.co.uk/2/hi/europe/4929604.stm. 12 Koppen (VRT television broadcast Jan. 27, 2011), available at http://www.youtube.com/watch?v=GiC7oG8fgwU.
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egg. 13 Samuel Ghilain was born on November 28, 2008. 14 Upon his birth, the Belgian embassy in Kiev, Ukraine refused to recognize him as a citizen of Belgium. 15 Because Belgian law is silent on the legality of surrogacy, the Belgian government denied Samuel citizenship on the grounds that it had no legal basis to recognize the Ukrainian birth certificate, despite the fact that Samuels biological father is a Belgian citizen. 16 Samuel also could not be a Ukrainian citizen because Ukrainian law recognizes the intended parents as the childs legal parents. 17 Therefore, Samuel was not legally recognized by either Ukraine, his country of birth, or Belgium, his country of intended residence. 18 Without a legal identity and passport, Samuel could not leave Ukraine. 19 The couple placed Samuel with a foster family while they attempted to resolve the legal disputes. 20 After a year, their financial resources were exhausted, and Samuel was placed in a Ukrainian orphanage, where he would remain for another year. 21 It took two years for Samuels citizenship status to be resolved. 22 After a Belgian court ruled in favor of Samuels parents, the Belgian Foreign Ministry finally agreed to issue Samuel a passport. 23 In February 2011, two years and three months after his birth, Samuel Ghilain was finally allowed to go home with his parents. 24
Melvin, supra note 10. Id. 15 Koppen, supra note 12. 16 Id. 17 FAMILY CODE OF UKRAINE [FAM. CODE] art. 123(2) (Ukr.). 18 Samuels country of intended residence, Belgium, is the same as his parents country of origin and nationality. See Don Melvin, Boy Stuck 2 Years in Ukraine Arrives in Belgium, NBCNEWS.COM (Feb. 26, 2011, 6:25 PM), http://www.msnbc.msn.com/id/41800437/ns/world_news-wonderful_world/t/boy-stuckyears-ukraine-arrives-belgium/#.UGNYZY7LCs9. While it is possible for a surrogate childs country of intended residence to be different from the intended parents country of origin and nationality, the cases examined in this Note do not involve such a scenario, which may present the additional complication of the parents immigration status. In this Note, the intended parents are always citizens of the country of intended residence, also known as the receiving country. 19 Melvin, supra note 10. 20 Id. 21 Id. 22 Id. 23 Id. 24 Melvin, supra note 18.
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Although Samuel Ghilain was ultimately granted a passport after a prolonged and costly legal battle, his case did not set a precedent for future parents seeking citizenship for their surrogate child. The Foreign Ministry subsequently issued a press release advising Belgians against hiring surrogates in a foreign nation, because [w]ithin this legal vacuum it is problematic for our country to recognise forms of surrogate motherhood involving Belgians abroad. 25 Belgium has yet to pass legislation dealing with surrogacy. 26 Samuel Ghilain is neither the first nor last surrogate child to be born stateless. 27 Numerous commentators have stressed the need for international and domestic regulation of surrogacy. 28 Despite widespread recognition of such need, in countries that have attempted legislative reform, such efforts have proven difficult to implement. 29 The existing frameworks for resolving citizenship status are problematic, and a concerted international effort to reduce inconsistencies in the regulation of surrogacy is necessary. Yet it appears that an international convention is a long time away from implementation. 30 The timely development of a remedy is impeded by the need to balance the competing interests of various parties. The private individuals involved are the couple who has hired the surrogate mother, the intended, and oftentimes biological, parents of the child; the surrogate mother who has been hired to carry the child; and the child produced by
25 Steve Vanackere, Surrogate Motherhood, KINGDOM OF BELGIUM FOREIGN AFFAIRS, FOREIGN TRADE AND DEVELOPMENT COOPERATION (Feb. 18, 2011), http://diplomatie.belgium.be/en/Newsroom/news/press_releases/foreign_affairs/2011/02/ni _1802110_vanackere_surrogate_motherhood.jsp. 26 Consular Information: Children Born of a Surrogate Mother, EMBASSY OF BELGIUM, http://www.diplobel.us/BelgianCitizens/Nationality/surrogatemother.asp (last visited Jan. 20, 2012). 27 See infra Parts II-IV. 28 See, e.g., Katarina Trimmings & Paul Beaumont, International Surrogacy Arrangements: An Urgent Need for Legal Regulation at the International Level, 7 J. PRIVATE INTL L. 627, 633 (2011); Margaret Ryznar, International Commercial Surrogacy and Its Parties, 43 J. MARSHALL L. REV. 1009, 1015-16 (2010); Austin Caster, Note & Comment, Dont Split the Baby: How the U.S. Could Avoid Uncertainty and Unnecessary Litigation and Promote Equality by Emulating the British Surrogacy Law Regime, 10 CONN. PUB. INT. L.J. 477, 507-11 (2011); Ruby L. Lee, Note, New Trends in Global Outsourcing of Commercial Surrogacy: A Call for Regulation, 20 HASTINGS WOMENS L.J. 275 (2009). 29 See infra Part III.A. 30 See infra Part III.B.
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the surrogacy. 31 In certain circumstances, the subjective interests of the surrogate mother and the intended parents are not aligned; 32 however, this Note, in focusing on the question of the surrogate childs legal status, does not address situations where this conflict arises. 33 This imbroglio also necessarily implicates state interests. In international surrogacy arrangements where the childs legal status becomes an issue, there are typically two countries involved: the country of birth where the surrogacy arrangement takes place, and the receiving country where the intended parents are from. Each nation is obligated to protect the objective interests of its citizens and to ensure that its laws are not violated. This Note examines how the lack of harmonization in international surrogacy laws has led to the birth of surrogate children who are not considered citizens of any country. Part II concerns the conflict of laws that lead to such a result. More specifically, it details how differing principles of nationality, coupled with a lack of consensus on the legality of surrogacy, render some surrogate children stateless. Part III examines efforts at implementing legislative reform in India, a major surrogacy destination, and on an international level. While proposed legislation in India may provide procedural safeguards, and serve as a model for other nations with permissive surrogacy laws, an international convention would be the most efficient way to prevent statelessness. However, an international convention is not without its drawbacks, as it would require time to implement and would not completely eliminate statelessness in international surrogacy arrangements. In the interimbetween the present and the passing of an international conventionand as a future supplemental remedial measure to an international convention, a solution to stateless surrogate children is needed. A flexible adjudicative process would be most efficient; rigid adherence to formulaic rules without regard for factual variations in individual cases may provide a clear, comprehensive framework, but it does so at the expense of equity. 34 Therefore, Part IV examines the remaining solution available to the stateless surrogate child:
Ryznar, supra note 28, at 102238. See, e.g., In re Baby M, 537 A.2d 1227 (N.J. 1988) (custody dispute between the surrogate mother and the couple who had commissioned the surrogacy). 33 There is no evidence of a custody dispute between the surrogate mother and the commissioning couple in any of the cases discussed in this Note. 34 See generally Cass R. Sunstein, Problems with Rules, 83 CALIF. L. REV 953 (1995).
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domestic courts. When a surrogate child is born stateless, the intended parents may petition either the domestic courts of the childs country of birth or receiving country for recognition. This Note focuses on how the courts in India and the United Kingdom have adjudicated this issue. Indian courts, in struggling with this complex matter, have yet to develop a coherent framework for adjudication. By contrast, the courts of England and Wales have established a clear legal standard: although public policy remains crucial, the childs welfare is the courts paramount concern, and the matter will be resolved in the best interest of the child. The approach of British courts conforms to international principles on childrens rights, and ought to be adopted by other domestic courts that face this issue in the future. Furthermore, to avoid prolonged separation, emergency travel certificates should be issued by the receiving country so that the child may remain with the parents while the matter is pending in court. Although the country of intended residence may have strong public policy concerns behind its decision to prohibit surrogacy, the welfare of the child should nevertheless remain the courts paramount consideration. II. CONFLICT OF LAWS A. The Rise of International Commercial Surrogacy While the concept of surrogacy may be ancient, 35 modern ethical and legal tensions were sparked by the advent of assisted reproductive technologies (ART) in the 1970s. 36 Today there are two methods of surrogacy: traditional, where the surrogate womans own egg is fertilized with the intended fathers sperm, and gestational, where an embryo is created with in vitro fertilization (IVF) and implanted in the surrogates womb. 37 The embryo is created from the gametes of the intended parents or
35 Christine L. Kerian, Surrogacy: A Last Resort Alternative for Infertile Women or a Commodification of Womens Bodies and Children?, 12 WIS. WOMENS L.J. 113, 116-17 (1997). See also Usha Rengachary Smerdon, Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India, 39 CUMB. L. REV. 15, 16 (2009) (discussing references to surrogacy in Biblical and Hindu mythology). 36 Kerian, supra note 35, at 117-19. 37 Weldon E. Havins & James J. Dalessio, Reproductive Surrogacy at the Millennium: Proposed Model Legislation Regulating Non-Traditional Gestational Surrogacy Contracts, 31 MCGEORGE L. REV. 673, 675, 681 (2000).
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those of donors. 38 Intended parents may prefer gestational surrogacy to traditional surrogacy due to the lack of genetic ties between the child and the surrogate woman, thereby reducing the likelihood of the surrogate changing her mind and exercising custodial claims over the child. 39 If the surrogate has been compensated for carrying the child, the arrangement is known as a commercial surrogacy. 40 If the surrogate is not paid, or receives no compensation beyond medical costs, it is known as an altruistic surrogacy. 41 The ethical concerns raised by surrogacy include the surrogate womans rights over her body, 42 the preservation of human dignity, 43 the possible exploitation of indigent surrogates and gamete donors, 44 and the commodification of children. 45 Surrogacy proponents argue that surrogacy is a mutually beneficial arrangement: surrogates will realize a rare economic opportunity and the intended parents will have a child they otherwise could not
Smerdon, supra note 35, at 17. There are no firm statistics about the prevalence of either method, but according to Sherrie Smith, program administrator of a surrogacy agency in the United States, only 226 out of 1,355 babies born in their program since 1980 were created through traditional surrogacy; the rest were gestational surrogacies. Alex Kuczynski, Her Body, My Baby, N.Y. TIMES, Nov. 30, 2008, http://www.nytimes.com/2008/11/30/magazine/30Surrogatet.html. The seminal case on custody disputes between surrogates and intended parents is In re Baby M, 537 A.2d 1227 (N.J. 1988), in which the surrogate mother refused to terminate her parental rights upon the birth of the child. See also Vicki C. Jackson, Baby M and the Question of Parenthood, 76 GEO. L.J. 1811 (1988) (discussing the difficulties of determining parentage in a traditional surrogacy arrangement). 40 Abhishake Sinha & Sayan Chakraborty, The Challenges of Surrogacy in India, 2 INDIA L. NEWS 9 (Winter 2011), available at http://meetings.abanet.org/webupload/commupload/IC906787/newsletterpubs/IndiaLawN ew-Winter2011.pdf. 41 Id. 42 Katherine B. Lieber, Selling the Womb: Can the Feminist Critique of Surrogacy Be Answered?, 68 IND. L.J. 205, 211 (1992). 43 The German ambassador to India, Thomas Matussek, stated that surrogacy is illegal in Germany because it is not compatible with our idea of human dignity, which is enshrined in our constitution. Kstner, supra note 8. 44 The Indian Union Minister of Health has advocated for a law on surrogacy because it has become more than sporadic and is lending itself to commercial exploitation like the kidney (transplant). Seema Singh, Draft Regulation on Surrogacy in Two Months for Public Debate, LIVE MINT (Sept. 8, 2008, 10:53 AM), http://www.livemint.com/Politics/n2WUYFlqw5pfbEQOJHVjWK/Draft-regulation-onsurrogacy-in-two-months-for-public-debat.html. 45 Smerdon, supra note 35, at 51 (Excising the physical act of pregnancy and childbearing from the notion of motherhood necessarily leads to commodification.).
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have. 46 Proponents further argue that restricting or prohibiting surrogacy is an infringement upon reproductive and contractual freedom. 47 While the ethical debate over the legalization of surrogacy cannot be ignored, that issue is beyond the scope of this Note. 48 These ethical questions over modern surrogate births have resulted in diverging opinions over its legality. 49 A nations laws on surrogacy may fall into one of four categories: (1) the law is completely silent on surrogacy and its legality is undetermined, e.g., Belgium; 50 (2) all surrogacy contracts, commercial and altruistic, are prohibited, e.g., France 51 and Germany; 52 (3) surrogacy is permitted if it is for altruistic, noncommercial purposes, e.g., United Kingdom; 53 and (4) all forms of surrogacy are permitted, e.g., India, 54 Ukraine 55 and Israel. 56 In the United States there is no uniform federal law on surrogacy, and the matter
46 Scott Carney, Inside Indias Rent-A-Womb Business, MOTHER JONES, Mar./Apr., 2010, available at http://www.motherjones.com/politics/2010/02/surrogacy-tourism-indianayna-patel. See also Lorraine Ali, The Curious Lives of Surrogates, NEWSWEEK, Mar. 29, 2008, available at http://www.newsweek.com/id/129594. 47 See Lori B. Andrews, Surrogate Motherhood: The Challenge for Feminists, in SURROGATE MOTHERHOOD: POLITICS AND PRIVACY 167, 168 (Larry Gostin ed., 1990). 48 For further discussions on the ethics of surrogacy, see SCOTT B. RAE, THE ETHICS OF COMMERCIAL SURROGATE MOTHERHOOD: BRAVE NEW FAMILIES? (1994); CARMEL SHALEV, BIRTH POWER: THE CASE FOR SURROGACY (1989); Melissa Lane, Ethical Issues in Surrogacy Arrangements, in SURROGATE MOTHERHOOD: INTERNATIONAL PERSPECTIVES 121 (Rachel Cook et. al. eds., 2003); Eric Blyth & Abigail Farrand, Reproductive Tourism A Price Worth Paying for Reproductive Autonomy?, 25 CRITICAL SOC. POLY 91 (2005); Kerian, supra note 35, at 153-65; Richard A. Posner, The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 5 J. CONTEMP. HEALTH L. & POLY 21 (1989); Smerdon, supra note 35, at 51-62; Anton van Niekerk & Liezl van Zyl, The Ethics of Surrogacy: Womens Reproductive Labour, 21 J. MED. ETHICS 345 (1995); COMM. ON ETHICS, AM. COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS, COMM. OPINION NO. 397, SURROGATE MOTHERHOOD 1 (Feb. 2008). 49 Ryznar, supra note 28, at 1016. 50 See infra Part I. 51 CODE CIVIL [C. CIV.] art. 16-7 (Fr.). 52 EmbryonenschutzgesetzESchG [The Embryo Protection Act], Dec. 13, 1990, BGBL. I at 2746, 1 (Ger.). 53 Surrogacy Arrangements Act, 1985, c. 49 (Eng., Wales & N. Ir.), available at http://www.legislation.gov.uk/ukpga/1985/49. 54 Baby Manji Yamada v. Union of India, A.I.R. 2009 S.C. 84 (India). Although surrogacy is judicially recognized in India, there is no legislation expressly permitting surrogacy. Ryznar, supra note 28, at 1017. 55 FAM. CODE art. 123 (Ukr.). 56 Rhona Schuz, Surrogacy in Israel: An Analysis of the Law in Practice, in SURROGATE MOTHERHOOD: INTERNATIONAL PERSPECTIVES 35 (Rachel Cook et. al. eds., 2003).
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is left to the States. 57 California is particularly notable as a surrogacy-friendly jurisdiction. 58 Differing laws, coupled with the ease of modern day communications and travel, have encouraged commissioning parents to enter into surrogacy arrangements in foreign nations. 59 The practice of travelling to a foreign country for the purpose of utilizing its medical reproductive services is commonly referred to as medical tourism, and may be more specifically referred to as surrogacy tourism, fertility tourism, or reproductive tourism. 60 International surrogacy has become a booming business in countries such as India 61 and Ukraine 62 due to their relatively low costs, lax regulations, and populations of willing surrogates. 63 Although surrogacy is also legal in Israel, its strict
57 Ryznar, supra note 28, at 1012. For a description of various state laws, see Caster, supra note 28, at 505-08. 58 Ryznar, supra note 28, at 1014-15. 59 PERMANENT BUREAU, HAGUE CONFERENCE ON PRIVATE INTL LAW, PRIVATE INTERNATIONAL LAW ISSUES SURROUNDING THE STATUS OF CHILDREN, INCLUDING ISSUES ARISING FROM INTERNATIONAL SURROGACY ARRANGEMENTS 7 (Mar. 2011) [hereinafter STATUS ISSUES], available at http://www.hcch.net/upload/wop/genaff2011pd11e.pdf; see also Mina Chang, Womb For Rent, HARV. INTL REV. (July 6, 2009 11:30PM), available at http://hir.harvard.edu/frontiers-of-conflict/womb-for-rent (Relative affordability combined with loose legal restrictions makes India an ideal choice for many prospective parents abroad, and the high rates of compensation for willing Indian birth mothers have created a growing pool of suppliers for the industry.). 60 Carney, supra note 46; Priti Sehgal, Reproductive Tourism Soars in India: Adoption and Surrogacy Laws Have Yet to Catch Up, THEWIP.NET (Oct. 7, 2008), http://www.thewip.net/contributors/2008/10/reproductive_tourism_soars_in.html; Kate Kelland, Unequal Access Drives Fertility Tourism, Experts Say, REUTERS, Sept. 14, 2010, available at http://www.reuters.com/article/idUSTRE68C57P20100914. 61 According to Dr. Shivani Sachdev Gour, director of a surrogacy center in India, [t]here has been a 60-70% increase in foreign nationals opting for surrogacy in the recent years . . . There is a huge demand not only because of cheap facilities but the fact that Indian women are not usually into drugs and alcohol. Durgesh Nandan Jha, IVF Brings Two-fold Joy to Spanish Businessman, TIMES OF INDIA (Jan. 4, 2012, 2:29 AM), http://timesofindia.indiatimes.com/city/delhi/IVF-brings-two-fold-joy-to-Spanishbusinessman/articleshow/11357280.cms. 62 Olha Zhyla, More Women in Ukraine Want to Be Surrogate Mothers, DAY WEEKLY DIGEST (Dec. 15, 2009), http://www.day.kiev.ua/289226. 63 Critics of commercial surrogacy have argued that surrogate womens disadvantaged socioeconomic positions make voluntary service an illusory concept. According to Usha Smerdon, Surrogacy is a form of labor . . . . an exploitative one, similar to child labor and sweatshops driven by Western consumerism. Carney, supra note 46. See also Smerdon, supra note 35, at 51-56 (examining the burdens of surrogate mothers and arguing that surrogacy perpetuates oppression of poor Indian women).
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regulations render medical tourism impractical. 64 In India, commercial surrogacy is legal and effectively unregulated. 65 In 2005, the Ministry of Health and Family Welfare published nonbinding National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (the 2005 The 2005 Guidelines acknowledged the Guidelines). 66 mushrooming of infertility clinics in India and that [t]here are no guidelines for the practice of ART, accreditation of infertility clinics and supervision of their performance in India. This document aims to fill this lacuna. 67 The 2005 Guidelines established medical criteria for infertility treatments, 68 as well as a procedure for the government to regulate ART clinics. 69 However, the 2005 Guidelines have been criticized for their vagueness, voluntary nature, and lack of guidance. 70 Since 2008, there has been much speculation that the Indian Parliament will pass a bill legalizing and regulating surrogacy; however, it is unclear if and when that will happen. 71 International surrogacy has become a profitable industry, one that shows no signs of abating. 72 As gestational surrogacy arrangements become increasingly popular, nations are struggling to keep pace with modern technology. 73 Many nations existing
64 In Israel, a committee must approve commercial surrogacy contracts. Comprehensive screening of potential candidates is required, and only infertile heterosexual couples are permitted to use a surrogate. Schuz, supra note 56, at 45. As a result of Israels stringent regulations, Israeli citizens have become medical tourists themselves and seek out surrogacy arrangements in foreign countries. Evan Pondel, Why Israeli Gays Opt for US Surrogate Births, GLOBALPOST (Apr. 18, 2010, 8:55 AM), http://www.globalpost.com/dispatch/israel-and-palestine/100406/gay-marriage-adoptionsurrogate. 65 Ryznar, supra note 28, at 1017. 66 Smerdon, supra note 35, at 35. 67 NIRMAL K. GANGULY, PREFACE TO INDIAN COUNCIL OF MED. RESEARCH & NATL ACAD. OF MED. SCI., NATIONAL GUIDELINES FOR ACCREDITATION, SUPERVISION AND REGULATION OF ART CLINICS IN INDIA, at xii (2005) [hereinafter 2005 GUIDELINES], available at http://www.icmr.nic.in/art/art_clinics.htm. 68 Id. at 37-42. 69 Id. at 72-74. 70 KARI POINTS, THE KENAN INST. FOR ETHICS AT DUKE UNIV., COMMERCIAL SURROGACY AND FERTILITY TOURISM IN INDIA: THE CASE OF BABY MANJI 7 (2009), available at http://www.duke.edu/web/kenanethics/CaseStudies/BabyManji.pdf; Smerdon, supra note 35, at 41. 71 See infra part III.A. 72 Carney, supra note 46 (The Confederation of Indian Industry predicts that medical tourism, including surrogacy, could generate $2.3 billion in annual revenue by 2012.). 73 For example, a June 2011 embassy inspection report by the United States
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laws on legal parentage are rooted in traditional concepts of conception and birth. 74 The law may recognize the surrogate woman as the surrogate childs legal mother even if the surrogacy was gestational, with no genetic link between the surrogate and the child. 75 The identification of the surrogate woman as the legal mother may create problems for the childs citizenship status. B. Citizenship Laws The problems of a stateless surrogate child may be attributed in part to the variant principles that govern the acquisition of nationality in different countries. The acquisition of nationality 76 at birth operates under two principles: jus soli (right of the soil) and jus sanguinis (right of blood). 77 Nations operating under the jus soli principle confer citizenship to those who are born within its territories, while nations who have adopted the jus sanguinis principle grant citizenship based upon the nationality of the childs parents or ancestors. 78 The two doctrines are not mutually exclusive, and a countrys nationality laws may operate under both
Department of State notes that the Bureau of Consular Affairs is aware that regulations and laws [regarding citizenship] have not kept pace with [ART] technology and is working with legal advisers and other agencies to update policies. OFFICE OF INSPECTOR GEN., U.S. DEPT OF STATE & THE BROAD. BD. OF GOVERNORS, REPORT NO. ISP-I-11-39A, INSPECTION OF EMBASSY NEW DELHI, INDIA AND CONSTITUENT POSTS (June 2011). 74 R. Alta Charo, Legislative Approaches to Surrogate Motherhood, in SURROGATE MOTHERHOOD: POLITICS AND PRIVACY 88, 104 (Larry Gostin ed., 1990) (For many years, a woman who bore a child was clearly the mother of that child.). 75 See, e.g., Saiko Saibansho [Sup. Ct.] Mar. 23, 2007, 2006 (kyo) no. 47, 61:2 SAIKO SAIBANSHO MINJI HANREISH [MINSH] 619, http://www.courts.go.jp/english/judgments/text/2007.03.23-2006.-Kyo-.No..47.html (Japan) ([T]here is no choice but to construe the existing Civil Code to require that a woman who has conceived and delivered a child shall be the mother of the child, and that a motherchild relationship cannot be deemed to be established between the child and the woman who has not conceived or delivered the child, even where the child is born using the egg donated by that woman.). 76 The terms nationality and citizenship are used interchangeably in this Note to refer to a sovereign states recognition of an individual to be a member of that state. Strictly speaking, the two terms are distinguishable, with citizenship signifying the municipal aspect of state membership and nationality denoting an individuals status as the subject of a state. PAUL WEIS, NATIONALITY AND STATELESSNESS IN INTERNATIONAL LAW 3-7 (1956). 77 Patrick Weil, Access to Citizenship: A Comparison of Twenty-Five Nationality Laws, in CITIZENSHIP TODAY: GLOBAL PERSPECTIVES AND PRACTICES 17, 17 (T. Alexander Aleinikoff & Douglas Klusmeyer eds., 2001). 78 Id.
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principles. 79 Traditionally, the concept of nationality is inextricably intertwined with issues of state sovereignty. 80 States have no obligations to confer citizenship, and it is within a sovereign states discretion to dictate the terms of eligibility for citizenship, a principle that has been repeatedly recognized by The states international instruments and judicial bodies. 81 sovereign autonomy and authority over these matters is often a point of contention and concern in the ongoing dialogue concerning stateless individuals. 82 If a couple hires a surrogate in a foreign nation operating under jus soli principles, such as the United States, 83 their child would not be born stateless, although there is no guarantee that the couples native country would recognize the child as a citizen. 84 By contrast, a couple who has hired a surrogate in a nation operating under jus sanguinis principles may find that their child is not recognized as a citizen of any nation. 85 Acquiring nationality in a country with jus sanguinis principles requires establishing legal parentage, a difficult task when two nations adopt disparate positions on surrogacy. 86 Recognition of legal parentage is dependent upon whether surrogacy is recognized in that particular country. The problems presented by this conflict of laws are best
Id. at 20. Jeffrey L. Blackman, State Successions and Statelessness: The Emerging Right to an Effective Nationality Under International Law, 19 MICH. J. INTL L. 1141, 1151 (1998). 81 Id. at 1151-55. 82 Id. 83 U.S. CONST. amend. XIV, 1, cl. 1 (All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.). 84 Such was the case with the Mennessons, a French couple who had hired a woman in California to be their surrogate. Pierre-Antoine Souchard, France Rules Against Children of Surrogate Mothers, HUFFINGTON POST (Apr. 6, 2011, 1:27 PM), http://www.huffingtonpost.com/huff-wires/20110406/eu-france-surrogate-mothers/. Because surrogacy is illegal in France, the Cour de cassation, Frances highest court, ruled that the twin girls could not be considered French citizens as a matter of public policy. Id. However, because they were born on U.S. soil, the Mennesson twins had American citizenship. Id. 85 See Matthew J. Gibney, Statelessness and the Right to Citizenship, FORCED MIGRATION REVIEW, Apr. 2009, at 50, available at http://www.fmreview.org/FMRpdfs/FMR32/50-51.pdf (Problems in demonstrating parentage or place of birth and conflicts of laws between states can put people in the situation that no state recognises them as a citizen. Strict jus sanguinis laws, moreover, may pass on statelessness to the children of stateless people.). 86 Id.
79 80
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exemplified by the case of Baby Manji. 87 In 2007, a Japanese couple, the Yamadas, hired a surrogate woman in India to carry an embryo created from the husbands sperm and an egg from an anonymous donor. 88 The nationality laws of Japan and India largely rest upon jus sanguinis principles, and establishing legal parentage is necessary to obtain citizenship. 89 However, complications arose when the Yamadas divorced before Manji was born. 90 The terms of the surrogacy contract provided that the intended father, Dr. Yamada, would retain sole custody of Manji in the event of a separation, a condition that was not challenged by Mrs. Yamada, who no longer wanted the child. 91 Indian government officials puzzled over who should be listed as Manjis mother on her birth certificate. 92 Under the 2005 Guidelines, the surrogate childs birth certificate shall be in the name of the genetic parents and [a] child born through ART shall be presumed to be the legitimate child of the couple, born within wedlock, with consent of both the spouses, and with all the attendant rights of parentage, support and inheritance. Sperm/oocyte donors shall have no parental right or duties in relation to the child. 93 Furthermore, [i]n the case of a divorce during the gestation period, if the offspring is of a donor programmebe it sperm or ovathe law of the land as pertaining to a normal conception would apply. 94 Manji had three potential mothers: the former Mrs. Yamada, the anonymous egg donor, and the surrogate woman. 95 Since the egg donor could not be identified and neither Mrs. Yamada nor the surrogate woman wanted custody of the child, 96 Manji was
Baby Manji Yamada v. Union of India, A.I.R. 2009 S.C. 84 (India). Rohit Parihar, Identity Crisis, INDIA TODAY (Aug. 9, 2008, 8:36 AM), http://indiatoday.intoday.in/story/Identity+crisis/1/12831.html. 89 The Citizenship Act, No. 57 of 1955, 4 (India) [hereinafter Citizenship Act of 1955]; KOKUSEKIHO [Nationality Law], Law No. 147 of 1950, art. 2(1) (Japan). 90 Parihar, supra note 88. 91 Id. 92 Japanese Baby Finally Gets Birth Certificate, TIMES OF INDIA (Aug. 10, 2008, 12:00 AM), http://articles.timesofindia.indiatimes.com/2008-08-10/jaipur/27897780_1_certificatejapanese-baby-manji-yamada. 93 2005 GUIDELINES, supra note 67, at 63, 74. 94 Id. 3.12.4. 95 Japanese Baby Finally Gets Birth Certificate, supra note 92. 96 Japan Gate-Pass for Baby Manji, TELEGRAPH (India) (Oct. 17, 2008), http://www.telegraphindia.com/1081018/jsp/nation/story_9984517.jsp; Baby Manji Gets
87 88
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issued a birth certificate, which listed Dr. Yamada as the father and no mother. 97 Under section 3 of the Citizenship Act of 1955, persons born in India after 2003 may only acquire Indian citizenship if at least one of her parents is an Indian citizen. 98 Under these circumstances, Manji could not acquire Indian citizenship because her only legally recognized parent, Dr. Yamada, was not an Indian citizen. 99 Japan also refused to recognize Manji as a Japanese national, for Japan did not have laws regulating surrogacy and the Japanese Civil Code restricted its recognition of a matrilineal connection to the woman who gives birth to the childin this case, the Indian surrogate. 100 Although Dr. Yamada was Manjis biological father and a citizen of Japan, Japans nationality laws at the time dictated that a child born out of wedlock to a Japanese father and a foreign mother could not be recognized as a Japanese citizen unless the father had legally recognized the child before birth. 101 Dr. Yamada was also not permitted to adopt Manji because India does not allow single men to adopt a female child. 102 Without the recognition of Japan or India, Manji was a stateless child. C. The Meaning of Statelessness Without a legal identity, Baby Manji could not obtain the required travel documents to leave India. 103 The possession of a passport is a requirement for crossing international borders. 104 But
Birth Certificate, TELEGRAPH (India) (Aug. 9, 2008), http://www.telegraphindia.com/1080810/jsp/nation/story_9671806.jsp. 97 Japanese Baby Finally Gets Birth Certificate, supra note 92. 98 Citizenship Act of 1955, supra note 89, 3. 99 Id. 100 Saiko Saibansho [Sup. Ct.] Mar. 23, 2007, 2006 (kyo) no. 47, 61:2 SAIKO SAIBANSHO MINJI HANREISH [MINSH ] (Japan) ([T]here is no choice but to construe the existing Civil Code to require that a woman who has conceived and delivered a child shall be the mother of the child . . . .). See also No Entry for Surrogate Baby/Divorce of Japanese Couple Leaves Girl Stranded in India, DAILY YOMIURI, Aug. 8, 2008. 101 Sayuri Umeda, Japan: Nationality Law Amended, LIBRARY OF CONGRESS (Dec. 17, 2008), http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l20540852_text. The law was amended on December 12, 2008 as Law No. 88 of 2008, allowing Japanese nationality to be granted to illegitimate children of Japanese fathers and foreign mothers who are recognized by their fathers after birth. Id. 102 Law Prevents Dad from Adopting Manji, TIMES OF INDIA (Aug. 26, 2008, 2:06 PM), http://articles.timesofindia.indiatimes.com/2008-08-26/delhi/27910990_1_baby-manjiikufumi-yamada-prospective-adoptive-parents. 103 See Japan Gate-Pass for Baby Manji, supra note 96. 104 WEIS, supra note 76, at 223. This is a relatively modern development. In the
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statelessness encompasses more than the inability to travel internationally. As long as she was without a nationality, Manjis basic human rights remained at risk of violation. 105 Stateless individuals face deprivation of rights in international and domestic arenas. 106 Because nationality is the principal link between the individual and international law, the stateless individual lacks the essential condition for securing to the individual the protection of his rights in the international sphere. 107 Domestically, stateless persons may be denied access to education, health care, legal employment, and political participation. 108 International instruments have repeatedly recognized the individuals right to nationality or citizenship. Article 15 of The Universal Declaration of Human Rights (UDHR) identifies citizenship as a fundamental human right: [e]veryone has the right to a nationality. 109 The UDHR was ratified in 1948 by the United Nations General Assembly. 110 Over time, it has acquired significant legal status and [a]lmost all would agree that some violations of the Declaration are violations of international law. 111 In 1959, the United Nations passed another non-binding resolution, the Declaration of the Rights of the Child, which proclaimed that [t]he child shall be entitled from his birth to a name and a nationality. 112 The right to nationality was finally codified in 1989 with the U.N. General Assembly adopting the Convention on the Rights of the Child, which in Article 7 pronounced that children have the right to acquire a
aftermath of World War I, increased opportunities for mass travel coupled with nationalist fervor led to the development of the modern passport system. See John Torpey, The Great War and the Birth of the Modern Passport System, in DOCUMENTING INDIVIDUAL IDENTITY 256, 257 (Jane Caplan & John Torpey eds., 2001). 105 See WEIS, supra note 76, at 35; Jay Milbrandt, Stateless, 20 CARDOZO J. INTL & COMP. L. 75, 92 (2011). 106 See WEIS, supra note 76, at 35; Milbrandt, supra note 105, at 92-95. 107 WEIS, supra note 76, at 162. 108 Milbrandt, supra note 105, at 92. 109 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) art. 15 (Dec. 10, 1948), available at http://www.un.org/en/documents/udhr/index.shtml. 110 Id. 111 LOUIS HENKIN, THE AGE OF RIGHTS 19 (1990). 112 Declaration of the Rights of the Child, G.A. Res. 1386 (XIV), U.N. GAOR, 14th Sess., Supp. No. 16, U.N. Doc. A/4354 (Nov. 20, 1959).
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nationality. 113 Every member of the United Nationsexcept for Somalia and the United States, both of which were signatories has ratified it. 114 Set against this backdrop of an internationally recognized deficiency in human rights, the appropriate response of nations should be to engage in cooperative efforts to eradicate statelessness. 115 But, on the whole, such efforts to eliminate statelessness or address problems raised by statelessness have been unsuccessful. 116 Specific conventions on remedying statelessness were promulgated in 1954 and 1961: the Convention relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness, respectively. 117 International responses to the Conventions were lukewarm. 118 As of February 2013, there are seventy-six parties to the 1954 Convention, and only forty-nine Despite widespread parties to the 1961 Convention. 119 international acknowledgement that statelessness is a serious and pervasive problem, nations are reluctant to take affirmative remedial action, and there remain approximately twelve million stateless individuals around the globe. 120 It is then perhaps unsurprising that existing remedial measures dealing with stateless
Convention on the Rights of the Child art. 7(1), Nov. 20, 1989, 1577 U.N.T.S. 3. Status of Convention on the Rights of the Child, UNITED NATIONS TREATY COLLECTION, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV11&chapter=4&lang=en (last visited Nov. 7, 2011). 115 UNITED NATIONS HIGH COMMR FOR REFUGEES, PREVENTING AND REDUCING STATELESSNESS: THE 1961 CONVENTION ON THE REDUCTION OF STATELESSNESS 2 (Sept. 2010) [hereinafter STATELESSNESS], available at http://www.unhcr.se/fileadmin/user_upload/PDFdocuments/Legal/2011ReducingStatelessness.pdf (Although it has long been understood that statelessness should be avoided and that this goal can only be achieved through international cooperation, many States have yet to take action to ensure that everyone enjoys the right to a nationality.). 116 Milbrandt, supra note 105, at 76 (Despite the growing problem of statelessness and the severe vulnerability of those affected, international response has been minimal.). 117 STATELESSNESS, supra note 115, at 7. 118 Milbrandt, supra note 105, at 76. 119 Status of the Convention relating to the Status of Stateless Persons, UNITED NATIONS TREATY COLLECTION, http://treaties.un.org/pages/ViewDetailsII.aspx?&src=UNTSONLINE&mtdsg_no=V~3&c hapter=5&Temp=mtdsg2&lang=en (last visited Feb. 9, 2013); Status of the Convention on the Reduction of Statelessness, UNITED NATIONS TREATY COLLECTION, http://treaties.un.org/pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no= V-4&chapter=5&lang=en (last visited Feb. 9, 2013). 120 Id.
113 114
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children produced by international surrogacy arrangements have been inadequate. III. DIFFICULTIES IN DEVELOPING AND IMPLEMENTING DOMESTIC AND INTERNATIONAL REGULATIONS A. Indian Efforts at Domestic Legislative Reform Concerned with the lack of regulation on IVF, India has attempted to set out uniform guidelines with the Assisted Reproductive Technologies (Regulation) Bill and Rules (Draft ART Bill), a draft of which was initially released in 2008, 121 then subsequently revised in 2010. 122 The Draft ART Bill aims to regulate legal and medical aspects of surrogacy by establishing a National Advisory Board and setting out guidelines for clinic It also outlines the rights and duties of accreditations. 123 surrogates and intended parents. 124 Paragraph 34(19) of the proposed bill seeks to prevent the troubles faced by stateless surrogate children by providing the following safeguards:
A foreigner or foreign couple not resident in India, or a nonresident Indian individual or couple, seeking surrogacy in India shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after the pregnancy as per clause 34.2, till the child / children are delivered to the foreigner or foreign couple or the local guardian. Further, the party seeking the surrogacy must ensure and establish to the assisted reproductive technology clinic through proper documentation (a letter from either the embassy of the Country in India or from the foreign ministry of the Country, clearly and unambiguously stating that (a) the country permits surrogacy, and (b) the child born through surrogacy in India, will be permitted entry in the Country as a biological child of the commissioning couple/individual) that the party would be able to take the child / children born through surrogacy, including where the embryo was a consequence of donation of an oocyte or sperm, outside of India to the country of the
Smerdon, supra note 35, at 42. See Anil Malhotra, Legalising SurrogacyBoon or Bane?, TRIBUNE (India) (July 14, 2010), http://www.tribuneindia.com/2010/20100714/edit.htm#8. 123 Draft of The Assisted Reproductive Technologies (Regulation) Bill - 2010 [hereinafter Draft ART Bill], available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf. 124 Id.
121 122
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partys origin or residence as the case may be. If the foreign party seeking surrogacy fails to take delivery of the child born to the surrogate mother commissioned by the foreign party, the local guardian shall be legally obliged to take delivery of the child and be free to hand the child over to an adoption agency, if the commissioned party or their legal representative fails to claim the child within one months of the birth of the child. During the transition period, the local guardian shall be responsible for the well-being of the child. In case of adoption or the legal guardian having to bring up the child, the child will be given Indian citizenship. 125
Thus, ART clinics in India would not be able to proceed with IVF treatments for foreign intended couples unless the couple has obtained written permission from the governmental authorities of their nation of origin. The appointment of a local guardian ensures that the childs welfare is not neglected in the event that the intended parents are unwilling or unable to take custody, and the child will be given Indian citizenship. Although such measures would be adequate to protect the interests of the child in terms of acquiring citizenship, it is questionable when the Draft ART Bill will be passed. The first version of the Draft Bill was released in 2008, and since that time there has been continuous speculation on the laws imminent passage. 126 In the meantime, the Consul Generals of Belgium, France, Germany, Italy, the Netherlands, Poland, Spain, and the Czech Republic have sent letters to ART clinics in India requesting that they no longer provide ART services to their citizens. 127 The clinics are to direct the citizens of these nations to their respective
Id. at 27-28. See Nilanjana S. Roy, Protecting the Rights of Surrogate Mothers in India, N.Y. TIMES (Oct. 4, 2011), http://www.nytimes.com/2011/10/05/world/asia/05ihtletter05.html?_r=3 (stating that the bill was expected to be ratified by early next year). As of the date of this Notes publication, the bill has not been ratified. See also India to Tighten Laws on Rent-a-Womb Surrogacy, ECON. TIMES (Oct. 5, 2008, 8:07 AM), http://articles.economictimes.indiatimes.com/2008-10-05/news/27721565_1_surrogatemothers-surrogacy-indian-woman; Hillary Brenhouse, Indias Rent-a-Womb Industry Faces New Restrictions, TIME (June 5, 2010), http://www.time.com/time/world/article/0,8599,1993665,00.html; Govt Likely to Implement Surrogacy Bill Soon, DEVELOPMENT CHANNEL (Feb. 24, 2011), http://www.developmentchannel.org/government/parliament/1789-govt-likely-toimplement-surrogacy-bill-soon (last visited Feb. 25, 2012). 127 See Bar Our Nationals, European Countries Tell Surrogacy Clinics, TIMES OF INDIA (July 14, 2010, 3:00 AM), http://articles.timesofindia.indiatimes.com/2010-0714/india/28305352_1_surrogacy-clinics-citizenship-rights.
125 126
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consulates. 128 These requests, requiring intended parents to obtain approval from their native government before proceeding with ART treatment, reflect the standards set in the Draft Bill. However, these letters do not seem to have been effective, as citizens of these nations, e.g., Spain, have continued to utilize ART in India. 129 While the Draft ART Bill languishes in Parliament, the Indian Ministry of Home Affairs issued new visa regulations for those who travel to India for surrogacy arrangements. 130 Foreigners who visit India in order to commission surrogacies must apply for a medical visa instead of a tourist visa, and a medical visa will only be granted if certain conditions are met. 131 Among other conditions, the foreign couple must be a man and a woman married for at least two years, and they must provide a letter from their embassy stating that their country recognizes surrogacy, and will permit the child to enter the country as the couples biological child. 132 These regulations were first circulated to embassies in July 2012, but not publicized until January 2013. 133 It is not yet clear how these guidelines will be enforced, and whether they will be effective in addressing instances of stateless surrogate children being born in India. Although India is taking steps to regulate surrogacy, surrogacy is increasingly a global issue, and the accompanying problems of citizenship affect persons of various nations, including, but not limited to, Australia, 134 Belgium, 135 Canada, 136
Id. See Durgesh Nandan Jha, IVF Brings Two-Fold Joy to Spanish Businessman, TIMES OF INDIA (Jan. 4, 2012, 2:29 AM), http://articles.timesofindia.indiatimes.com/2012-0104/delhi/30588363_1_surrogate-mothers-surrogacy-ivf. 130 Madhavi Rajadhyaksha, No Surrogacy Visa for Gay Foreigners, TIMES OF INDIA (Jan. 18, 2013, 12:26 AM), http://timesofindia.indiatimes.com/india/No-surrogacy-visa-forgay-foreigners/articleshow/18066771.cms. 131 Type of Visa for Foreign Nationals Intending to Visit India for Commissioning Surrogacy and Conditions for Grant Visa for the Purpose, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, http://mha.nic.in/pdfs/CS-GrntVISA-291112.pdf (last visited Feb. 10, 2013). 132 Id. 133 See Rajadhyaksha, supra note 130; India Bans Gay Foreign Couples from Surrogacy, TELEGRAPH (U.K.) (Jan. 18, 2013, 2:57 PM), http://www.telegraph.co.uk/news/worldnews/asia/india/9811222/India-bans-gay-foreigncouples-from-surrogacy.html. 134 See Gavin King, Gay Cairns Dads in Bid for Surrogate Babies, CAIRNS POST (Sept. 11, 2010), http://www.cairns.com.au/article/2010/09/11/126495_local-news.html; Anna Whitelaw, Hundreds Pay for Overseas Surrogacy, BRISBANETIMES.COM.AU (June 3,
128 129
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France, 137 Germany, 138 Iceland, 139 Ireland, 140 Israel, 141 Japan, 142 New Zealand, 143 Norway, 144 Switzerland, 145 Turkey, 146 Ukraine, 147
2012), http://www.brisbanetimes.com.au/opinion/political-news/hundreds-pay-foroverseas-surrogacy-20120602-1zp1u.html. 135 See Melvin, supra note 10. 136 See Raveena Aulakh, After 6 Years and Fertility Mixup, Surrogate Twin Can Come Home, THESTAR.COM (May 5, 2011), http://www.thestar.com/news/article/985936--after-6years-and-fertility-mixup-surrogate-twin-can-come-home. 137 See Souchard, supra note 84. 138 See Dhananjay Mahapatra, German Surrogate Twins to Go Home, TIMES OF INDIA (May 27, 2010, 2:57 AM), http://articles.timesofindia.indiatimes.com/2010-0527/india/28279835_1_stateless-citizens-balaz-surrogate-mother. 139 See Icelandic Couple Plan Return with Surrogate Baby, ICELAND REVIEW ONLINE (Dec. 21, 2010, 7:30 PM), http://www.icelandreview.com/icelandreview/daily_news//Icelandic_Couple_Plan_Return_ with_Surrogate_Baby_0_371618.news.aspx. 140 See Carl OBrien, Surrogacy Children Caught in Legal Limbo, IRISH TIMES (Nov. 19, 2011), http://www.irishtimes.com/newspaper/frontpage/2011/1119/1224307824130.html (At least 15 children born through surrogacy to Irish couples abroad are caught in a legal limbo which has left them either stateless or unable to get an Irish passport.); Emily Hourican, Official Catch 22 That Blights This Babys Life, INDEPENDENT.IE (Oct. 23, 2011), http://www.independent.ie/lifestyle/official-catch-22-that-blights-this-babys-life2914282.html. 141 See Tomer Zarchin, Protest Vigil Planned for Newborn Twins Stuck in India, HAARETZ (May 10, 2010 2:19 AM), http://www.haaretz.com/print-edition/news/protestvigil-planned-for-newborn-twins-stuck-in-india-1.289315. 142 See Baby Manji Yamada v. Union of India, A.I.R. 2009 S.C. 84 (India); Saiko Saibansho [Sup. Ct.] Mar. 23, 2007, 2006 (kyo) no. 47, 61:2 SAIKO SAIBANSHO MINJI HANREISH[MINSH ] (Japan). 143 See Shabnam Dastgheib, Rent-a-Womb Babies Could End up Stateless, STUFF.CO.NZ (Aug. 20, 2011), http://www.stuff.co.nz/national/health/5477716/Rent-awomb-babies-could-end-up-stateless (New Zealanders desperate to create a baby are heading overseas and paying up to $100,000 to hire a womb, unaware that their children could end up stateless.); Stateless Babies from International Surrogacy, CATHNEWS NEW ZEALAND (Aug. 23, 2011), http://cathnews.co.nz/2011/08/23/stateless-babies-frominternational-surrogacy/ (In the past 18 months, at least two New Zealand babies had been born of Indian surrogates. But divergent surrogacy laws have meant the babies are not recognised as citizens of either country.). 144 See Sumitra Deb Roy, Stateless Twins Live in Limbo, TIMES OF INDIA (Feb. 2, 2011, 12:50 AM), http://timesofindia.indiatimes.com/city/mumbai/Stateless-twins-live-inlimbo/articleshow/7407929.cms. 145 See Sophie Douez, Flourishing Surrogacy Business Raises Fears, SWISSINFO.CH (Mar. 21, 2011, 2:57 PM), http://www.swissinfo.ch/eng/swiss_news/Flourishing_surrogacy_business_raises_fears.html ?cid=29791340. 146 See Re: G (Surrogacy: Foreign Domicile) [2007] EWHC (Fam) 2814 (Eng.). 147 See Claire Bigg & Courtney Brooks, Ukraine Surrogacy Boom Not Risk-Free, RADIO FREE EUROPE RADIO LIBERTY (June 4, 2011), http://www.rferl.org/content/womb_for_hire_ukraine_surrogacy_boom_is_not_risk_free/2 4215336.html; Melvin, supra note 10.
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United Kingdom, 148 and United States. 149 While India is currently the surrogacy capital of the world, 150 other nations are poised to take its place. 151 It is insufficient to demand regulation in any single nation. Commentators have noted there is an urgent need for a multilateral, legally binding instrument that would establish a global, coherent and ethical practice of international surrogacy. 152 B. Proposals for International Regulation Although efforts toward an international convention have increased in recent years, in the face of practical considerations that impede immediate implementation, alternative remedies must be considered. In April 2010, the Council on General Affairs and the Policy of the Hague Conference on Private International Law acknowledged the complex issues of private international law and child protection arising from the growth in cross-border surrogacy arrangements and invited the Permanent Bureau, the secretariat of the Hague Conference responsible for researching issues undertaken by the Conference, 153 to generate a report on the matter. 154 Preliminary reports were produced in March 2011 and March 2012, and it is expected that a full report will be produced
148 See Re: G (Surrogacy: Foreign Domicile) [2007] EWHC (Fam) 2814 (Eng.); Re: X & Y (Foreign Surrogacy) [2008] EWHC (Fam) 3030 (Eng.); Re: K (Minors) (Foreign Surrogacy) [2010] EWHC (Fam) 1180 (Eng.). 149 See Saiko Saibansho [Sup. Ct.] Mar. 23, 2007, 2006 (kyo) no. 47, 61:2 SAIKO SAIBANSHO MINJI HANREISH[MINSH ] (Japan). 150 Pronoti Datta, Surrogacy Goes into Labour, TIMES OF INDIA (May 15, 2010, 5:31 PM), http://articles.timesofindia.indiatimes.com/2010-05-15/india/28282187_1_manjiyamada-gay-couples-law-commission-report. 151 See Douglas Pet, Make Me a Baby as Fast as You Can, SLATE (Jan. 9, 2012, 7:15 AM), http://www.slate.com/articles/double_x/doublex/2012/01/reproductive_tourism_how_surro gacy_provider_planethospital_speeds_up_pregnancies_and_lowers_costs_.single.html (Wombs are being rented in what amounts to an international marketplace. And with new cross-border surrogacy operations springing up recently in countries such as Panama, Guatemala, Georgia, and Greece, the number of pregnancies involving multinational players and profit interests is likely to increase.). 152 Trimmings & Beaumont, supra note 28, at 633. 153 What is the Permanent Bureau of the Hague Conference?, HAGUE CONFERENCE ON PRIVATE INTL L., http://www.hcch.net/index_en.php?act=faq.details&fid=30 (last visited Jan. 22, 2012). 154 COUNCIL ON GEN. AFFAIRS AND POLICY OF THE CONFERENCE, HAGUE CONFERENCE ON PRIVATE INTL LAW, CONCLUSIONS AND RECOMMENDATIONS ADOPTED BY THE COUNCIL (Apr. 7-9, 2010), available at http://www.hcch.net/upload/wop/genaff2010concl_e.pdf.
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in 2013. 155 The Council on General Affairs has remarked that [t]he Permanent Bureau should during the next year continue gathering information on the practical needs in the area, comparative developments in domestic and private international law, and the prospects of achieving consensus on a global approach. 156 While the Hague Conferences efforts are still in their infancy, scholars have proposed that an international convention be modeled after the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Adoption Professors Katarina Trimmings and Paul Convention). 157 Beaumont at the University of Aberdeen, have proposed that an international convention on surrogacy should not aim at the unification of the conflict rules . . . . Rather than focusing on traditional rules on jurisdiction and applicable law, the Convention should establish a framework for international co-operation with emphasis on the need for substantive safeguards and on procedures for courts, administrative authorities and private intermediaries. 158 A cooperative framework would serve to streamline administrative processes, reduce unrecognized surrogacy agreements, and combat trafficking in women and children. 159 Under this model, procedural safeguards drawn from the Hague Adoption Convention would include the establishment of a Central Authority within each contracting state. 160 This Central Authority would be responsible for cooperating with foreign counterparts and regulating the fertility clinics within its own country, including setting up a system of accreditation based upon suggestions made by the Convention. 161 The Central Authority of the receiving state would also be obligated to assist the intended
155 STATUS ISSUES, supra note 59; PERMANENT BUREAU, HAGUE CONFERENCE ON PRIVATE INTL LAW, A PRELIMINARY REPORT ON THE ISSUES ARISING FROM INTERNATIONAL SURROGACY ARRANGEMENTS (Mar. 2012) [hereinafter PRELIMINARY REPORT], available at http://www.hcch.net/upload/wop/gap2012pd10en.pdf. 156 COUNCIL ON GEN. AFFAIRS AND POLICY OF THE CONFERENCE, HAGUE CONFERENCE ON PRIVATE INTL LAW, CONCLUSIONS AND RECOMMENDATIONS ADOPTED BY THE COUNCIL (Apr. 5-7, 2011), available at http://www.hcch.net/upload/wop/genaff_concl2011e.pdf. 157 Trimmings & Beaumont, supra note 28, at 636. 158 Id. at 635. 159 Id. at 636. 160 Id. at 641. 161 Id.
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parents in obtaining nationality for the surrogate child if the child is unable to automatically qualify for citizenship from the receiving nation or the nation of one of the intended parents, if the intended parents are not citizens of the receiving nations. 162 While an international legal framework is necessary to minimize future complications raised by international surrogacy, caution should be taken in considering whether it ought to be modeled after the Hague Adoption Convention. Presuming that the end goal is the establishment of a stable, efficient international system for regulating surrogacy, the argument for the adoption of the Hague Adoption Conventions procedural safeguards necessarily relies on two presumptions: (1) that the archetype is sound and (2) that it may be effectively transposed to or adapted for surrogacy issues. Both advocates and critics of international adoption consider the Hague Adoption Convention somewhat controversial. 163 Advocates of international adoption believe that the process under the Hague Adoption Convention is burdensome to the point of effectively shutting down international adoption, while critics believe that the Hague Adoption Convention does not sufficiently guard against abuse. 164 To model an international convention on surrogacy after such a controversial system may not be desirable. Of course, no system is immune to criticism, and it may be argued that a flawed but workable set of rules is better than no rules at all. However, there still remains the question of whether the procedures in place for international adoptions are suitable for usage in a surrogacy context. The Hague Convention, in its March 2012 Preliminary Report on the Issues Arising from International Surrogacy Arrangements, points out that there are obvious and important differences between international surrogacy and intercountry adoption. For example, there is at the moment no similar set of agreed upon international principles relating to international surrogacy and therefore, it might be difficult to find common principles for an international system. 165 For instance, there is the question of what is to be done with
Id. at 646. Laura McKinney, International Adoption and the Hague Convention: Does Implementation of the Convention Protect the Best Interests of Children?, 6 WHITTIER J. CHILD & FAM. ADVOC. 361, 365-66 (2007). 164 Id. 165 PRELIMINARY REPORT, supra note 155, at 29 (citation omitted).
162 163
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the child. In an adoption setting, the child in question is presumably being removed from an accustomed environment, whether that is an orphanage, foster care, or another family. As a remedial measure for an illegal adoption, the state may return the child to his or her original environment. But in the context of surrogacy, the child in question is likely to be in the womb or newly born, and there is no environment to which the child may be returned, especially when the surrogate mother does not wish to have custody of the child. Allowing the intended parents to keep the child may render the rule ineffective, since they ultimately will have attained the objective that they sought to achieve with their illegal act: having a biological child. 166 On the other hand, taking the child away for placement in an orphanage or foster care would likely be detrimental to the child. 167 While an international convention is a desirable goal, much work is needed before it may become a reality. Furthermore, the drafting, ratification, adoption, and implementation of an international convention is a lengthy process. The Hague Conference began its work on the Hague Adoption Convention in 1988, a Draft Convention was prepared in early 1992, and signing was completed on May 29, 1993. 168 Further delays may be caused by the time it takes for a Contracting State to implement the Convention. Although the United States signed the Hague Adoption Convention in 1994, it was not ratified until April 2008. 169 In the meantime, international surrogacy remains a legal quagmire fraught with complexities and unresolved problems. While an international convention on surrogacy would likely reduce instances of conflict of laws, it would not completely
166 See Kent Greenawalt, Punishment, in 3 ENCYCLOPEDIA OF CRIME & JUST. 1282, 1282 (2d ed. 2002) ([I]f the response to those who break rules was to give them something they wanted . . . one would not consider the response to be punishment, even if the aim were to reduce future violations.). 167 See Lucy Le Mare, Karyn Audet & Karen Kurytnik, Protecting the Rights of International Orphans: Evaluating the Alternatives, in CHILDRENS RIGHTS: MULTIDISCIPLINARY APPROACHES TO PARTICIPATION AND PROTECTION 39, 62 (Tom ONeill & Dawn Zinga eds., 2008) ([I]nstitutional rearing . . . is clearly the least favourable option in that it often entails denying children the most fundamental right to opportunities for development . . . .). 168 Gonzalo Parra-Aranguren, History, Philosophy and General Structure of the Hague Adoption Convention, in CHILDREN ON THE MOVE: HOW TO IMPLEMENT THEIR RIGHT TO FAMILY LIFE 63, 63-64 (Jaap Doek, Hans van Loon & Paul Vlaardingerbroek eds., 1996). 169 Understanding the Hague Convention, U.S. DEPT OF STATE, http://adoption.state.gov/hague_convention/overview.php (last visited Jan. 23, 2012).
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eliminate instances of children being born stateless as a result of an illegal surrogacy arrangement. An international convention would likely only govern the processes of a cross-border surrogacy arrangement between parties to the convention. 170 Eighty-nine nations are parties to the Hague Adoption Convention, 171 and notably absent from that list is Ukraine, which is currently a popular surrogacy destination. 172 Stateless surrogate children may still be born in states that are not parties to the proposed international convention on surrogacy. Even assuming that all nations become a party to a surrogacy convention, it remains an open question whether the child could obtain the nationality of the intended parents if the intended parents made surrogacy arrangements in contravention of the convention. IV. DOMESTIC COURTS: THE REMAINING REMEDY In the absence of international regulation, issues of conflict of laws continue to arise. As nations struggle to keep pace with rapidly evolving technologies, various domestic legislative, judicial, and administrative attempts have been made to resolve the citizenship issues of stateless surrogate children. In some instances, stateless surrogate children are able to receive citizenship purely through the administrative process. 173 Other cases require judicial intervention. Despite Indias status as a major surrogacy destination, there is a notable lack of regulation. 174 Indian courts, when presented with the issue of stateless surrogate children, have resolved the cases on narrow grounds that provide little precedential value. Courts in the United Kingdom have taken to resolving the issues with the best interests of the child as the paramount consideration, a position that ought to be adopted by the domestic courts of other receiving nations.
170 Convention Countries, U.S. DEPT OF STATE, http://adoption.state.gov/hague_convention/countries.php (last visited Jan. 23, 2012). 171 Id. See also Status Table on Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, HAGUE CONF. ON PRIVATE INTL L., http://www.hcch.net/index_en.php?act=conventions.status&cid=69 (last visited Feb. 10, 2013). 172 See Bigg & Brooks, supra note 147. 173 See, e.g., Icelandic Couple Plan Return with Surrogate Baby, supra note 139 (describing an Icelandic couple able to obtain citizenship for their child with the assistance of parliamentarians). 174 See Datta, supra note 150.
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Baby Manji Yamada, the surrogate child born in India and commissioned by a Japanese couple who subsequently divorced, was not legally recognized by either Japan or India as a citizen of that country. 175 Lacking a legal identity and a passport, Baby Manji remained in India under the care of her paternal grandmother while Dr. Yamada returned to Japan for work. 176 On August 12, 2008, Satyaan Indian nonprofit organizationfiled a habeas corpus writ with the Rajasthan High Court, 177 alleging that the grandmother had no legal authority to retain custody of Manji since Indian surrogacy laws were ill-defined. 178 The Rajasthan High Court ordered that the baby be produced and, in response, the grandmother petitioned the Supreme Court of India to intervene. 179 In September 2008, the Supreme Court of India dismissed Satyas petition without a judgment on the merits. 180 The court noted that there existed a National Commission for Protection of Child Rights that had been created to promote and defend the rights of children in India, and any alleged violations of Manjis rights ought to be addressed by the Commission. 181 Likewise with the issue of Manjis legal identity, the court left the question to administrative processes upon obtaining the Solicitor Generals advice that travel documents could be granted to Manji within four weeks if a comprehensive application was submitted. 182 A month after the courts pronouncement, the local passport office issued an identity certificate to Manji; however, the certificate did not mention her nationality, religion, or mothers name, and it was only valid for travel to Japan. 183 Once the
See supra Part II.B. Parihar, supra note 88. 177 The Rajasthan High Court is the highest court in the state of Rajasthan. NEELAM SHARMA, THE JUDICIAL SYSTEM AND GOVERNANCE 51-64 (2007). The Indian Constitution establishes a Supreme Court as the apex court of the land, and subordinate courts in individual states. Id. There is a High Court for each state, under which there is a system of lower courts. Id. 178 Japan Gate-Pass for Baby Manji, supra note 96. 179 Id. 180 Baby Manji Yamada v. Union of India, A.I.R. 2009 S.C. 84 (India). 181 Id. 182 Id. 183 Identity Certificate Issued to Surrogate Japanese Baby, TIMES OF INDIA (Oct. 17, 2008, 6:48 PM), available at http://articles.timesofindia.indiatimes.com/2008-10175 176
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identity certificate was issued, the Japanese government agreed to grant Manji a one-year visa on humanitarian grounds. 184 After three months of legal entanglement, Manji was finally allowed to leave India and reunite with her father in Japan. 185 However, this still did not resolve the question of her nationality. Japanese officials have suggested that Manji could become a naturalized Japanese citizen, 186 but it remains unclear what processes future intended parents from Japan would have to take to ensure that their surrogate child is recognized as a citizen. 187 The case of Baby Manji is illustrative of the citizenship problems faced by surrogate children born abroad, but its muddled conclusion offers no instructive framework or guidance for subsequent cases. It did not take long for Indian courts to be confronted with this issue again. In January 2008, a surrogate woman in India gave birth to twin boys whose intended parents were German citizens, Jan Balaz and Susanne Lohle. 188 The twins were conceived with Balazs sperm and an egg from an anonymous donor. 189 Upon the twins birth, Balaz and Lohle were registered as the twins parents, but a court order later amended the birth certificates to reflect the surrogate woman as the mother of the infants rather than Susanne Lohle. 190 Balaz was initially able to obtain Indian passports for the twins, but the Indian government objected, insisting that the twins could not be Indian citizens as there does not seem to be any law governing grant of passports to children born to surrogate mothers. 191 Consequently, the High Court of Gujarat 192 ordered
17/jaipur/27924444_1_certificate-emiko-yamada-surrogate-mother. 184 Baby Manji Reaches Osaka, INDIAN EXPRESS (Nov. 4, 2008 12:07 AM), available at http://www.indianexpress.com/news/Baby-Manji-reaches-Osaka/380945. 185 Id. 186 Id. 187 Smerdon, supra note 35, at 72 (The Baby Manji case highlights that the law remains unclear as to whether a child born to an Indian surrogate is a citizen of India.). 188 Surrogate Babies Born in India Are Indians, INDIA TODAY (Nov. 13, 2009, 10:19 AM), available at http://indiatoday.intoday.in/story/%27Surrogate+babies+born+in+India+are+Indians%27/ 1/70679.html; Adoption Only Way Out for Surrogate Twins: Germany, TIMES OF INDIA (Jan. 19, 2010, 1:48 AM), http://articles.timesofindia.indiatimes.com/2010-0119/india/28135694_1_surrogate-twins-german-couple-susan-lohle. 189 Id. 190 Balaz v. Anand Municipality, No. 3020, Special Civil Application, Interim Order 8 (Gujarat H.C. Apr. 2, 2008) (India). 191 Balaz v. Anand Municipality, No. 3020, Special Civil Application, Interim Order 2-3 (Gujarat H.C. May 13, 2009) (India).
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that the passports be surrendered and stated that Balaz should apply for a certificate of identity. 193 As support for its decision, the Gujarat High Court cited to Baby Manji Yamada v. Union of India, and noted mostly similar facts were before the [Honorable] Apex Court. 194 Balaz surrendered the Indian passports on May 14, 2008, and subsequently petitioned the same court for the return of the passports. 195 While a certificate of identity had been sufficient for Japan to admit Baby Manji into its territory, the German government refused to admit the Balaz twins based on the same type of document. 196 According to German officials, the twins were born in India and were therefore Indian citizens. 197 The High Court of Gujarat noted that German law does not recognize surrogacy. 198 This was an understatement of Germanys laws. Not only does Germany expressly prohibit surrogacy, it is a criminal offense that is punishable with up to three years of imprisonment. 199 When reconsidering the issue of the twins identity, the Gujarat High Court noted the legal, moral and ethical issues surrounding the case, but declared that they were primarily concerned with the rights of two new born innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. 200 After surveying surrogacy laws in other nations and noting the lack of such legislation in India, the court ultimately concluded that [w]e, in the present legal frame-work, have no other go [sic] but to hold that the babies born in India to the gestational surrogate are citizens of this country and therefore, entitled to get the Passports. 201
192 The Gujarat High Court is the highest court in the state of Gujarat. See SHARMA, supra note 177, for background on the Indian judicial system. 193 Balaz v. Anand Municipality, No. 3020, Special Civil Application, Interim Order 3 (Gujarat H.C. May 13, 2009) (India). 194 Id. 2 (alteration in original). 195 Balaz v. Anand Municipality, No. 3020, Special Civil Application, Judgment 5 (Gujarat H.C. Nov. 11, 2009) (India). 196 Id. 197 Id. 198 Id. 7. 199 EmbryonenschutzgesetzESchG [The Embryo Protection Act], Dec. 13, 1990, BGBL. I at 2746, 1 (Ger.). 200 Balaz v. Anand Municipality, No. 3020, Special Civil Application, Judgment 9 (Gujarat H.C. Nov. 11, 2009) (India). 201 Id. 22.
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The government of India filed an appeal with the Supreme Court, challenging whether a surrogate mother could be considered a legal parent under the Citizenship Act of 1955. 202 While the Indian government was adamant that the twins could not be granted Indian citizenship, the Solicitor General indicated that the government was willing to grant the twins a one-time passport so that they might leave the country out of humane consideration of the situation. 203 While the case was still pending before the court, the German government proposed a solution. 204 The German embassy insisted that under German law, a child born by an Indian woman who is married to an Indian national has no legal relationship with the German commissioning parents but that [i]ssuing the children with a visa for the purpose of adoption in Germany could be considered. 205 The process for intercountry adoptions is governed by the Hague Adoption Convention, which requires that each party state have an officially designated Central Authority to oversee the adoption process. 206 In India, that Central Authority is the Central Adoption Resource Authority (CARA), an autonomous body under the Ministry of Women & Child Development that regulates and oversees incountry and inter-country adoptions. 207 Under CARAs guidelines, a person competent to be adopted is defined as [a]ny orphan, abandoned or surrendered child . . . declared legally free for adoption by the Child Welfare Committee. 208 There are no provisions for the adoption of a child born to a surrogate mother. 209 Although Balaz and Lohle were willing to undergo the adoption process, existing rules prohibited them from adopting Balazs biological children. 210 The Supreme
202 Born in India, No Where to Belong, TIMES OF INDIA (Dec. 18, 2009, 8:26 PM), http://www.timesnow.tv/Born-in-India-no-where-to-belong/articleshow/4334611.cms. 203 Id. 204 Adoption Only Way Out for Surrogate Twins: Germany, supra note 188. 205 Id. 206 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption arts. 6, 14-22, May 29, 1993, 32 I.L.M. 1134. 207 CENT. ADOPTION RESOURCE AUTHORITY, http://www.adoptionindia.nic.in (last visited Jan. 22, 2012). 208 Overview, CENT. ADOPTION RESOURCE AUTHORITY, http://adoptionindia.nic.in/guideline-family/Overwiew.html (last visited Jan. 22, 2012). 209 See SC Directs CARA to Consider German Couples Plea for Adoption, TIMES OF INDIA (Mar. 17, 2010, 11:50 AM), http://articles.timesofindia.indiatimes.com/2010-0317/india/28132298_1_german-couple-indian-citizenship-surrogate-children. 210 See id.
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Court of India therefore directed CARA to consider a one-time exemption for Balaz and Lohle so that they could adopt the twins. 211 CARA agreed, but stated that this exemption would not serve as precedent for future cases. 212 In May of 2010, more than two years after the twins birth, Balaz and Lohle were allowed to adopt the children, and Germany granted the twins the necessary travel documents. 213 While considering the Balaz case, Justices Singhvi and Ganguly of the Indian Supreme Court remarked that [s]tatelessness cannot be clamped upon the children. There must be some mechanism by which they get citizenship of some country. Children should be allowed to leave the country after an assurance Despite the of their citizenship has been given. 214 acknowledgement of the need for a remedy, the Balaz case, like Baby Manjis case, was concluded without further clarity on the state of the law. Neither case provides the courts with an instructive framework for resolving future cases. In the absence of regulation or case law precedent, it is unclear how future courts in India would address cases of stateless surrogate children. B. Judicial Approach in England and Wales By contrast, the United Kingdom has legislation regulating surrogacy, and its courts have adopted a clear standard in adjudicating questions of legal parentage and citizenship. In the United Kingdom, commercial surrogacy is prohibited under the Surrogacy Arrangement Act of 1985 215 and the Human Fertilisation and Embryology Act of 2008 (HFEA). 216 The Surrogacy Arrangement Act imposes criminal sanctions upon third parties who arrange commercial surrogacies, although there have
See id. See id. 213 Mahapatra, supra note 138. 214 Dhananjay Mahapatra, German Couples Surrogate Kids May End up Stateless, TIMES OF INDIA (Dec. 16, 2009, 3:36 AM), http://articles.timesofindia.indiatimes.com/2009-12-16/india/28087928_1_surrogatechildren-surrogate-mother-german-couple. 215 Surrogacy Arrangements Act, 1985, c. 49, 2 (U.K.), available at http://www.legislation.gov.uk/ukpga/1985/49. 216 Human Fertilisation and Embryology Act, 2008, c. 22 (U.K.) [hereinafter HFEA 2008], available at http://www.legislation.gov.uk/ukpga/2008/22. The 2008 version updates and revises Human Fertilisation and Embryology Act, 1990, c. 37 (U.K.) [hereinafter HFEA 1990], available at http://www.legislation.gov.uk/ukpga/1990/37.
211 212
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been no reports of criminal prosecutions under either of these two acts. 217 Parties who enter into a surrogacy arrangement do not suffer criminal penalties, but the surrogacy contract is unenforceable. 218 This precludes the surrogate from suing for nonpayment, but it also prevents intended parents from taking civil action against the surrogate if she decides to keep the child. 219 HFEA sets out a system of rules to identify the legal parentage of the surrogate child. HFEA treats the woman who gives birth as the mother of the child, and, if she is married, it is presumed that her husband is the father unless it may be shown that the artificial insemination was conducted without his consent. 220 If the surrogate woman is single, the intended father may be considered the legal parent if the child is biologically his. 221 However, HFEA also provides a method for the intended parents to be legally recognized as the childs parents. Under section 54(1) of HFEA, the court may make an order providing for a child to be treated in law as the child of the applicants if the child is biologically related to one of two parents, 222 the application for parental order is made within six months of the childs birth, one of the parents resides in the United Kingdom, 223 and both parents are over eighteen years old. Lastly, and most critically, HFEA provides that a parental order will only be issued in certain circumstances:
The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of (a) the making of the order, (b) any agreement required by subsection (6), 224 (c) the handing over of the child to the
217 Karen Busby & Delaney Vun, Revisiting The Handmaids Tale: Feminist Theory Meets Empirical Research on Surrogate Mothers, 26 CAN. J. FAM. L. 13, 36 (2010). 218 Surrogacy Arrangements Act 1(A) (No surrogacy arrangement is enforceable by or against any of the persons making it.). 219 Phillip Anderson, An Evaluation of Surrogacy Law and Its Potential Development in the UK; Is There a Clear Way Forward?, 2:2 KINGS STUDENT L. REV. 37, 38-39 (2010). 220 HFEA 2008, supra note 216, 33-35. 221 Id. 36. 222 Id. The earlier HFEA of 1990 permitted only heterosexual, married couples to apply for a parental order. HFEA 1990, supra note 216, 30. The 2008 HFEA revised the law to allow homosexual and unmarried couples, but single individuals are still prohibited from applying for a parental order. HFEA 2008, supra note 216, 54(2). 223 See, e.g., Re: G (Surrogacy: Foreign Domicile), [2007] EWHC (Fam) 2814 (Eng.) (parental order denied to intended parents who are not U.K. residents). 224 Subsection (6) provides that the Court must be satisfied that the surrogate woman and her husband have freely, and with full understanding of what is involved, agreed
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applicants, or (d) the making of arrangements with a view to the making of the order, unless authorised by the court. 225
A principal point of controversy has been the meaning of reasonably incurred expenses. Neither the text of nor explanatory notes to HFEA define or clarify the meaning of reasonably incurred. Moreover, even if a payment to the surrogate woman clearly exceeds reasonable expenses, the court is nevertheless authorized to grant the parental order. 226 Given the ambiguity of the reasonably incurred language and the express power to grant parental orders even when payments are unreasonable, U.K. courts have a great deal of discretion and flexibility in their judgments. The courts have exercised discretion to the benefit of the children involved. 227 To illustrate, in the case of Re: X & Y, 228 a British couple petitioned the High Court of Justice Family Division 229 for a parental order for their surrogate twins who had been born in Ukraine. The children could not be considered Ukrainian citizens because Ukraine recognized the British couple as the childrens legal parents. 230 British immigration authorities allowed the children to enter the United Kingdom after a DNA test concluded that they were related to one of the British couple. 231 Expressing great sympathy for the intended parents, the Court found that this situation had not been foreshadowed in any of the extensive enquiries the applicants had made. 232 Nevertheless, the couples payments to the surrogate woman had significantly exceeded reasonable expenses, therefore a parental order could only be granted if the court retroactively approved the payments. 233
unconditionally to the making of the [parental] order. HFEA 2008, supra note 216, 54(6). See e.g., A & A v. P, P & B, [2011] EWHC (Fam) 1738, 13 (Eng.). 225 HFEA 2008, supra note 216, 54(8). 226 Id. 54(8). 227 To date, a court has yet to refuse to order a parental order on the grounds of excessive payment. Anderson, supra note 219, at 40. 228 Re: X & Y (Foreign Surrogacy), [2008] EWHC (Fam) 3030 (Eng.). 229 The High Court of Justice, consisting of three divisions (Chancery, Queens Bench, and Family Division) hears appeals and cases of first instance. It has jurisdiction in England and Wales. The United Kingdom does not have a single unified legal system; Scotland and Northern Ireland have their own judicial system. 3 MODERN LEGAL SYSTEMS CYCLOPEDIA 3.230.7, 3.230.33 (Kenneth Robert Redden et. al. eds., 2001). 230 Re: X & Y (Foreign Surrogacy), [2008] EWHC (Fam) 3030, 8 (Eng.). 231 Id. 10. 232 Id. 233 Id. 18.
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After noting that HFEA provided no guidance on the basis of approving excessive surrogacy payments, the Court held that in determining whether the payments violated public policy, the relevant inquiries are whether: (1) the sum paid was disproportionate to reasonable expenses; (2) the intended parents were acting in good faith and without moral taint; and (3) the intended parents were trying to defraud the authorities. 234 The Court answered the latter two questions in the affirmative, but struggled with the issue of authorizing the excessive payments. 235 While the court found that it could authorize the payments in the instant case without great difficulty, it admitted that the process was most uncomfortable. 236 In the opinion, Justice Hedley declared that:
What the court is required to do is to balance two competing and potentially irreconcilably conflicting concepts. Parliament is clearly entitled to legislate against commercial surrogacy and is clearly entitled to expect that the courts should implement that policy consideration in its decisions. Yet it is also recognised that as the full rigour of that policy consideration will bear on one wholly unequipped to comprehend it let alone deal with its consequences (i.e. the child concerned) that rigour must be mitigated by the application of a consideration of that childs welfare. That approach is both humane and intellectually coherent. The difficulty is that it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised (at the very least) by a refusal to make an order. 237
Subsequently in Re: S, 238 the Court further articulated the public policy concerns behind judicial determination of whether parental orders ought to be granted to intended parents who have exceeded reasonable payments to the surrogate woman. First, courts must ensur[e] that commercial surrogacy arrangements are not used to circumvent childcare laws in [the United Kingdom]. 239 Second, courts must not be involved in arrangements that look[]
234 235 236 237 238 239
Id. 21. Id. 22-24. Id. 23-24. Id. 24. Re: S, [2009] EWHC (Fam) 2977 (Eng.). Id. 7(1).
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like the simple payment for effectively buying children overseas. 240 Lastly, courts should ensure the wellbeing of the surrogate by ensuring that the sum paid did not overbear . . . [her] will. 241 Re: S concerned the application of a parental order by a married British couple that had commissioned a surrogacy in California. 242 Although the Court found that payments made to the surrogate had exceeded reasonably incurred expenses, it concluded that the welfare of . . . [the surrogate] children viewed in a lifelong perspective is such that it is in their interests that a parental order . . . should be made. 243 The same results were reached in Re: L, 244 where the Court granted a parental order to the intended parents of a child in question born in the United States. In that case, the Court remarked that [the childs] welfare is no longer merely the courts first consideration but becomes its paramount consideration. 245 However, it also took care to note that notwithstanding the paramountcy of welfare, the court should continue carefully to scrutinise applications for authorisation under Section 54(8) with a view to policing the public policy matters identified in RE S. 246 The courts have continued to utilize the best interests of the child as the fundamental principle in resolving questions of stateless surrogate children. In Re: IJ (A Child), 247 the court granted a parental order for a British couple whose payment to a Ukrainian surrogate woman for a child exceeded reasonable expenses, rendering the arrangement invalid under domestic law. 248 Most recently, in December of 2011, a British couple that had paid 27,000 to an ART clinic in India was allowed to keep the children. 249 A clear legal framework has thus emerged from this line of
Id. 7(2). Id. 7(3). 242 Id. 1-3. 243 Id. 6, 8. 244 Re: L (A Minor), [2010] EWHC (Fam) 3146 (Eng.). 245 Id. 9. 246 Id. 12. 247 Re: IJ (A Child), [2011] EWHC (Fam) 921 (Eng.). 248 Id. 2. 249 Martin Beckford, Childless Couple Allowed to Keep Babies Born Through Indian Surrogate, TELEGRAPH (U.K.) (Dec. 7, 2011, 6:23 AM), http://www.telegraph.co.uk/news/newstopics/lawreports/8938514/Childless-coupleallowed-to-keep-babies-born-through-Indian-surrogate.html.
240 241
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cases in English courts. In considering the surrogate childs citizenship problems, courts will balance the interest of the state and the individual. While courts must be mindful of the public policy considerations behind the prohibition of commercial surrogacy, their primary concern is to resolve the issue in the best interests of the child. C. Adopting the Best Interests of the Child Standard in Receiving Countries The standard that has been adopted by English family courts comports with the principles of international instruments on childrens rights, and domestic courts of receiving countries who deal with the question of stateless children should follow in the footsteps of English courts in adjudicating with the best interests of the child in mind. In instances where public policy is at odds with the childs best interests, the latter should take precedence. The adoption of a clear legal standard would expedite judicial and administrative proceedings. The domestic courts of nations where surrogacy is illegal have sometimes refused to confer citizenship upon the foreign-born surrogate child. 250 Reproductive tourism is often viewed as an attempt to circumvent domestic prohibitions, a practice that is to be condemned and discouraged. 251 Consequently, the receiving country may refuse to grant citizenship even when it recognizes that there is a genuine parent-child relationship. 252 This measure not only unjustly punishes the innocent child by forcing him or her to bear the consequences of the parents actions, but it is contrary to international standards on the rights of the child. 253 Article 3(1) of Convention on the Rights of the Child provides that [i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts
250 For example, in April 2011, a German court ruled that the Germany embassy in India was within its rights to deny a passport to a child born as a result of a German couples arrangement with a surrogate. Surrogate Children Have No Right to German Passport, Court Rules, LOCAL (Ger.) (Apr. 28, 2011, 11:41 AM), http://www.thelocal.de/society/20110428-34681.html. 251 Guido Pennings, Legal Harmonization and Reproductive Tourism in Europe, 19 HUM. REPROD. 2689, 2691 (2004). 252 Richard F. Storrow, Travel into the Future of Reproductive Technology, 79 UMKC L. REV. 295, 305-06 (2010); see also Surrogate Children Have No Right to German Passport, Court Rules, supra note 250. 253 Convention on the Rights of the Child, supra note 113, art. 7(1).
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of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 254 The Convention on the Rights of the Child has been regarded as hugely influential and the touchstone for childrens rights throughout the world. 255 This principle has been reflected in numerous international instruments, including the 1959 Declaration of the Rights of the Child, 256 the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, 257 the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, 258 the International Covenant on Civil and Political Rights, 259 the European Convention on Human Rights, 260 and the African Charter on the Rights and Welfare of the Child. 261 Under the Convention on the Rights of the Child, it is contrary to the childs best interests to remain stateless or
254 255 256
Id. art. 3(1). JANE FORTIN, CHILDRENS RIGHTS AND THE DEVELOPING LAW 49 (2005). Declaration of the Rights of the Child, supra note 112, art. 2. Article 2 states that: [t]he child 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. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.
Id.
257 Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 20378 (entered into force Sept. 3, 1981), art. 5(b). Article 5(b) obliges signatories: [t]o ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases. Id. 258 Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, G.A. Res 41/85, 41 U.N. GAOR, 41st Sess., Supp. No. 53, U.N. Doc. A/RES/41/85, art. 5 (Dec. 3, 1986) (adopted without vote) (In all matters relating to the placement of a child outside the care of the childs own parents, the best interests of the child, particularly his or her need for affection and right to security and continuing care, should be the paramount consideration.). 259 Philip Alston, The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights, in THE BEST INTERESTS OF THE CHILD: RECONCILING CULTURE AND HUMAN RIGHTS 6 (Philip Alston ed., 1994). 260 Id. 261 Id.
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separated from his or her family. 262 Article 7 of the Convention on the Rights of the Child recognizes that every child:
[S]hall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. States parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. 263
The right of the child to remain with his or her family is also reflected in the preamble, which states the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding. 264 Article 8(1) grants the right of the child to preserve his or her identity, including . . . family relations . . . without unlawful interference. 265 The Convention on the Rights of the Child also imposes obligations on the states to ensure family reunification: Article 10(1) states that applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. 266 Therefore, under a best interests standard, the courts primary goal is to ensure that the child is able to remain or be expediently reunited with his or her family. As we have seen from the situation of Samuel Ghilain and the Balaz twins, whose cases took years to resolve, expediency is lacking from these proceedings. Issues concerning a childs legal parentage, and thus his or her citizenship status, may require considerable time to resolve. In accordance with the principles articulated by the Convention on the Rights of the Child, the child ought to remain with the parents while his or her legal status is being resolved. In a situation where the parents are financially or legally incapable of remaining in the country where the child was born, the receiving country should issue an emergency travel certificate to permit the child entry into the country in order to ensure that the child will not be forcibly
262 See also Sonja Starr & Lea Brilmayer, Family Separation as a Violation of International Law, 21 BERKELEY J. INTL L. 213 (2003) (examining the problems of forced family separations). 263 Convention on the Rights of the Child, supra note 113, art. 7(2). 264 Id. pmbl. 265 Id. art. 8(1). 266 Id. art. 10(1).
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separated from the parents. This was the approach that was ultimately adopted by the Japanese government in the Baby Manji case, where a humanitarian visa was granted to authorize Manji to travel to Japan. 267 For specific guidelines on the issuance of an emergency travel certificate, the procedures recently adapted by Ireland may provide insight. In February 2012, after years of legislative inaction, the government of Ireland issued official guidelines for how a surrogate child born abroad may acquire Irish citizenship. 268 The Guidance Document published by the Minister for Justice, Equality and Defense provides that a child may obtain Irish citizenship when either the surrogate mother or the genetic father is an Irish citizen. All guardians of the child must have consented to the issuing of a passport, unless such consent has been dispensed with by an Irish court. 269 A passport will only be issued when guardianship has been established, but [i]n the best interests of the child and as a matter of best practice, an Emergency Travel Certificate (ETC) may be granted to allow the child to enter Ireland. 270 The Guidance Document provides that an ETC may be issued if the child is or may be an Irish citizen. 271 A parent or guardian of the child must make the application for ETC, and all guardians must consent to the issuing of an ETC. 272 By requiring the consent of all guardians, the Guidance Document affords the surrogate mother some protection. Under this requirement, since the mother of a child born outside marriage is the childs sole guardian, 273 even if the surrogate child is biologically related to the commissioning father, the intended parents cannot unilaterally remove the child to Ireland without the surrogate mothers
See supra Part IV.A. Carol Coulter, Irish Citizenship Guidelines for Surrogate-born Children, IRISHTIMES.COM (Feb. 22, 2012), http://www.irishtimes.com/newspaper/ireland/2012/0222/1224312168956.html. 269 CITIZENSHIP, PARENTAGE, GUARDIANSHIP AND TRAVEL DOCUMENT ISSUES IN RELATION TO CHILDREN BORN AS A RESULT OF SURROGACY ARRANGEMENTS ENTERED INTO OUTSIDE THE STATE (2012) [hereinafter GUIDANCE DOCUMENT], available at http://www.inis.gov.ie/en/JELR/20120221%20Guidance%20Document.pdf/Files/20120221 %20Guidance%20Document.pdf. 270 Id. at 4. 271 Id. (emphasis added). 272 Id. 273 Id. at 2.
267 268
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permission. However, the Guidance Document ultimately treats the childs best interests as the paramount considerationthe consent of all guardians is not required if an Irish court has dispensed with it, or if there are exceptional circumstances threatening the childs life, health, or safety that would require the child to travel. 274 Lastly, the Guidance Document emphasizes that issuing an ETC must be in the best interests of the child. 275 The Guidance Document further states that [t]he Irish authorities do not, in general, regard it as being in the best interests of children that they would arrive into the State with adults to whom they have no legally recognised relationship and who have no legal authority to make decisions, including medical decisions, on their behalf. 276 Therefore, before an ETC is issued, the commissioning adults must provide a written agreement that they will notify the local health center of the childs presence within two days of arriving in Ireland, and that the genetic father will apply to the court for a declaration of parentage and a guardianship order within ten days of the childs arrival. 277 In addition, the immigration authorities and the Health Service Executive 278 will be notified of all ETCs that are issued. 279 Under this process, the surrogate child may remain with the intended parents in Ireland while questions of citizenship are resolved in the courts. D. Adopting the Best Interests of the Child Standard in Countries of Origin While it would be preferable for a surrogate child to have the same nationality as his or her intended parents, if the receiving country is unwilling or unable to confer citizenship, the child would be rendered stateless unless the country of birth is willing to act. However, the best interests standard is more easily applied in receiving countries, such as the United Kingdom and Belgium, rather than countries of birth such as India and Ukraine.
Id. at 4-5. Id. at 5. 276 Id. 277 Id. 278 The Health Service Executive is the organization responsible for providing public health services in Ireland. Our Structure, HEALTH SERVICE EXECUTIVE, http://www.hse.ie/portal/eng/about/Who/Our_Structure.html (last visited Feb. 25, 2012). 279 Id.
274 275
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A critical difference is that the receiving country is presumably the country of permanent residency for the parents and child. By contrast, a nation like India or Ukraine is more likely to be the country of birth, and the intended parents before the Indian or Ukrainian court are seeking to remove the child to another nation. 280 If the legal concept of nationality is to be defined as a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties, 281 then the country of birth has little to no incentive to confer citizenship upon the surrogate child. One may argue that a genuine connection does not exist between the surrogate child and the country of birth when there are no plans for the child to ever return to, let alone reside in, that country. Ideally, nations that permit surrogacy would have regulations to prevent situations in which a surrogate child would be born stateless. For example, Indias Draft ART Bill would require that surrogacy clinics obtain consent from the foreign intended parents government before proceeding with ART procedures. 282 However, popular surrogacy destinations such as India and Ukraine continue to lack regulation on surrogacy and consequently, these nations reap the financial benefits of commercial surrogacy without shouldering the burdens of regulation. The surrogate child is born stateless as a result of the intended parents actions and the permissive laws of the country of birth, but only the governmental entity has the power to remedy the childs statelessness, especially when the receiving country is unwilling or unable to confer citizenship. Under these circumstances, it is reasonable to look to the country of birth for a solution, for [i]f a State has legislation or practice which creates statelessness, it is that State which should resolve the problem. 283 Conferring citizenship upon the surrogate child would allow the child to obtain a passport and travel with his or her intended parents, thus eliminating instances of forced
See supra Part IV.A (discussing the cases of Baby Manji and the Balaz Twins). Nottebohm Case (Liech. v. Guat.), 1955 I.C.J. 4, 23 (Apr. 6). This language has been referred to as perhaps the most satisfying definition of nationality by acknowledging both its legal and political aspects as well as its social and cultural dimensions. Blackman, supra note 80, at 1147. 282 See supra Part III.A. 283 Carol A. Batchelor, Statelessness and the Problem of Resolving Nationality Status, 10 INTL J. REFUGEE L. 156, 169 (1998).
280 281
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separation. Furthermore, in the event that the child is ultimately unable to acquire citizenship in the receiving country, the child would not remain stateless. It may be argued that a country of birth should not grant citizenship to a surrogate child due to the risk of the child obtaining dual nationalities. Dual nationality has traditionally been looked upon with disfavor. 284 The concept of nationality is deeply rooted to allegiance to a single sovereign state, and [t]hose who voluntarily maintained dual nationality posed a threat to the protection of the community at the same time as they in many instances would make no contribution to it. 285 However, if the child is eventually able to obtain the nationality in the receiving country, the country of birth may revoke nationality without violating international norms. 286 [W]here the individual retains at least one nationality, there is no violation of the norm against statelessness, no adverse effect on other states, and hence, no violation of international law. 287 In Ukraine, where the intended parents are recognized as the legal parents, 288 legislative action is needed before a legal basis may be found for the surrogate childs citizenship. However, in India, the legal basis for granting citizenship to the surrogate child may be found in the Citizenship Act of 1955. In Balaz v. Anand Municipality, the Gujarat High Court held that [i]n the absence of any legislation [on surrogacy] to the contrary, we are more inclined to recognize the gestational surrogate who has given birth to the child as the natural mother. 289 The Court made reference to section 3 of the Citizenship Act of 1955, which provides that every person born in India . . . on or after the commencement of the Citizenship (Amendment) Act, 2003, where . . . one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of
284 Peter J. Spiro, Dual Nationality and the Meaning of Citizenship, 46 EMORY L.J. 1411, 1414 (1997) (Dual nationality was long disfavored under traditional conceptions of the individuals relationship to the state.). 285 Id. at 1432. 286 William Thomas Worster, International Law and the Expulsion of Individuals with More than One Nationality, 14 UCLA J. INTL L. & FOREIGN AFF. 423, 455 (2009). 287 Id. 288 FAM. CODE art. 123(2) (Ukr.). 289 Balaz v. Anand Municipality, No. 3020, Special Civil Application, Judgment 16 (Gujarat H.C. Nov. 11, 2009) (India).
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India by birth. 290 Since the Balaz twins were born in India to an Indian citizenthe surrogate womanthe Gujarat High Court determined that they were entitled to Indian passports. 291 Although the government of India appealed this ruling, the matter was resolved administratively before the Supreme Court of India could rule on whether a surrogate woman may be considered the natural mother and thus entitle the surrogate child to Indian citizenship. 292 Given that there are currently no laws regulating surrogacy and the Indian Supreme Court has not pronounced otherwise, the reasoning of the Gujarat High Court remains sound. Unless there is legislation expressly dictating the terms of the recognition of legal parentage in surrogacy arrangements, nothing prevents Indian courts from recognizing the surrogate woman as the childs legal parent and the legal basis for conferring citizenship. V. CONCLUSION The lack of international consensus concerning the legality of surrogacy has led to numerous instances of surrogate children born into statelessness. 293 Depending on the state, surrogacy may be prohibited, permitted, permitted with restrictions, or simply not addressed. Popular surrogacy destinations such as India have attempted to enact legislation to regulate surrogacy, which would include procedural safeguards to reduce instances of statelessness. 294 However, it is unclear whether and when the Draft ART Bill will be implemented. Further, since surrogacy is an increasingly global problem, piecemeal responses of various nations will be inadequate to provide a stable, long-term solution. An international convention is the ideal approach, although it is not a solution for the short-term, nor will it be sufficient on its own to eliminate all occurrences of stateless surrogate children. The imminent implementation of an international treaty is improbable given the controversial nature of surrogacy and the length of time it would take for an international treaty to take
Citizenship Act of 1955, supra note 89, 3. Balaz v. Anand Municipality, No. 3020, Special Civil Application, Judgment 22 (Gujarat H.C. Nov. 11, 2009) (India). 292 See supra Part IV.A. 293 See supra text accompanying notes 134-44. 294 Draft ART Bill, supra note 123.
290 291
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effect. Moreover, there is no guarantee that a proposed treaty would receive the support of all nations. As long as there is a conflict of laws on surrogacy and the acquisition of nationality, there is a risk of a child being born stateless. There then remains the question of how domestic courts ought to adjudicate such matters. Nations that have chosen to prohibit surrogacy have strong arguments to support their public policy considerations. 295 However, by denying citizenship to the surrogate child, the sins of the parents are visited upon the undeserving child. Therefore, domestic courts addressing this matter ought to look to the standard that has been adapted by the U.K. courts in resolving the dispute in the best interests of the child. Under this framework, the court must be mindful of the public policy considerations behind the prohibition of surrogacy, but maintain the childs welfare as its paramount consideration. 296 This approach is in line with international norms on childrens rights, which have recognized the childs right to a nationality and the right to stay with ones family where possible. 297 The receiving country should make every effort to ensure that the childs rights are not violated, which may include issuing an emergency travel certificate where appropriate so that the child is not forcibly separated from his or her parents. In the event that the receiving country is unwilling or unable to confer citizenship, the burden falls to the country of birth to ensure that the child does not remain stateless. The country of birth, having procured the financial benefits of permitting surrogacy while lacking regulatory measures that would prevent instances of statelessness, 298 should not leave the resulting child stranded in legal limbo.
295 296 297 298
See supra text accompanying notes 42-45. Re: L (A Minor), [2010] EWHC (Fam) 3146 (Eng.). Convention on the Rights of the Child, supra note 113, art. 7. See Carney, supra note 46; Datta, supra note 150.

Tina Lin, Stateless Children

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Tina Lin, Stateless Children

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