International Surrogacy Arrangements: An urgent need for Legal Regulation at the International Level

Journal of Private International Law

Volumn 7, Issue 3, 2011, Pages 627-647

  Trimmings, Katarina ^a   Beaumont, Paul ^a  

^a UNIVERSITY OF ABERDEEN   (United Kingdom)

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EID: 84878176239     PISSN: 17441048     EISSN: 17578418     Source Type: Journal    
DOI: 10.5235/jpil.v7n3.627     Document Type: Article

References (90)

1. Susan, Markens, Surrogate Motherhood and the Politics of Reproduction (University of California Press, 2007), 9
2. Re C (A Minor) (wardship: surrogacy) [1985] FLR 846 (Latey, J.). A surrogate mother in England was artificially inseminated with the sperm of an American “intended father”, to carry a baby for him and his infertile wife. The surrogate mother delivered the child without ever having met the couple. The “intended parents” applied for custody of the child in the UK. Following an investigation into the welfare of the child, the “intended parents” were awarded custody and permitted to remove the child to the United States. The surrogate mother did not raise any objections
3. Matter of Baby M (1988, N J) 537 A2d 1227. The parties, Ms Whitehead as the surrogate mother and Sterns as the “intended parents”, entered into a surrogacy agreement. Ms White-head conceived by in vitro fertilisation and delivered a baby girl. The baby was thereupon taken by the Sterns. The next day, however, Ms Whitehead said that she could not live without the baby and removed her from the Sterns. The father obtained a court decision ordering enforcement of the contract and return of the child. Upon learning of it, Ms Whitehead fled with the baby to Florida. There she was apprehended, the baby removed by force and returned to the Sterns. Ms Whitehead was awarded visitation rights
4. See eg M, Freeman, “Is Surrogacy Exploitative?” in S, McLean (ed), Legal Issues in Human Reproduction (Dartmouth Publishing, 1989), 164
5. LA, Brill, “When Will the Law Catch Up with Technology? Jaycee B v Superior Court of Orange County: An Urgent Cry for Legislation on Gestational Surrogacy” (1999–2000) 39 Catholic Lawyer 241, 241
6. I, Lebowitz-Dori “Womb for Rent: The Future of International Trade in Surrogacy” (1997) 6 Minnesota Journal of Global Trade 329, 329
7. International Social Service (ISS), “Evaluation of the Practical Operation of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Inter-country Adoption”, at 3 (hereinafter ‘ISS Report’). Also N Cantwell, UNICEF Innocenti Research Centre, “Intercountry Adoption–A Comment on the Number of ‘Adoptable’ Children and the Number of Persons Seeking to Adopt Internationally” (Spring 2003) V The Judges' Newslet-ter (published by the Hague Conference) 69, 72, http://hcch.e-vision.nl/upload/spring2003.pdf, accessed 14 January 2011
8. X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) at 26. Hedley J cautions that “as babies become less available for adoption…, more and more couples are likely to be tempted to follow the applicants' path to commercial surrogacy in those places where it is lawful”
9. Hague Conference on Private International Law, “Private International Law Issues Surrounding the Status of Children, Including Issues Arising From International Surrogacy Arrangements”, Prel Doc No 11 of March 2011 for the attention of the Council of April 2011 on General Affairs and Policy of the Conference [11], www.hcch.net/upload/wop/genaff2011pd11e.pdf, accessed 4 May 2011 (Surrogacy Prel Doc 2011). See also T Krim, “Beyond Baby M: International Perspectives on Gestational Surrogacy and the Demise of the Unitary Biological Mother” (1996) 5 Annals of Health Law 193, 225 (noting that “the global surrogacy market is quickly emerging“); and U Rengachary Smerdon, “Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India” (2008–09) 39 Cumberland Law Review 15, 15 (acknowledging “an increasingly global expansion of surrogacy programs”)
10. For example, S, Thakur, “Mother for Only Nine Months', BBC News, 21 March 2008, http://news.bbc.co.uk/1/hi/world/south_asia/7202043.stm, accessed 27 December 2010; S Nolen, “Desperate Mothers Fuel India's ‘Baby Factories’”, ScrippsNews, 13 February 2009, www.scrippsnews.com/node/40947, 27 December 2010; R Mendick and S Bhatia, “Couple Buy Child From India ‘Baby Factory’“, London Evening Standard, 6 May 2009, www.thisislondon.co.uk/standard/article-23686256details/Couple+buy+child+from+India+baby+factory'/arti-cle.do, accessed 27 December 2010; and J McBrearty, “Sarah Jessica Parker: Surrogacy on the Rise After Celeb Success”, Sky News, 11 December 2009, http://news.sky.com/skynews/Home/UK-News/Sarah-Jessica-Parker-Surrogacy-On-The-Rise-In-Britain-After-Star-Used-A-Surrogate-Mother/Article/200907215335484?f=rss, accessed 27 December 2010
11. V, Browne-Barbour, “Bartering for Babies: Are Preconception Agreements in the Best Interest of Children?” (2004) 26 Whittier Law Review 429, 436
12. Surrogacy Prel Doc 2011, n 9, [12]. Also X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) at 3. See also AG McEwen, “So You're Having Another Woman's Baby: Economics and Exploitation in Gestational Surrogacy” (1999) 32 Vanderbilt Journal of Transnational Law 271, 278
13. D, Spar, The Baby Business How Money, Science, and Politics Drive the Commerce of Conception (Harvard Business School Press, 2006), 71. See also R Rao, “Surrogacy Law in the United States: The Outcome of Ambivalence” in R, Cook, SD, Sclater and F, Kaganas (eds), Surrogate Motherhood: International Perspectives (Hart Publishing, 2003)
14. R, Deech, “Clones, Ethics and Infertility or Sex, Sheep and Statutes” (1998–99) 2 Quinnipiac Health Law Journal 133, 133
15. Yamada v Union of India, 2008 Ind Law SC 1554, 9 (29 September 2008) (known as “The Baby Manji Case”)
16. K, Farmer, “International Surrogacy Choices”, 29 June 2009, Ezine @rticles, http://ezinearti-cles.com/?International-Surrogacy-Choices&id=2538590, accessed 14 January 2011. In the US, for example, the total costs of a surrogacy arrangement range from $59,000 to $80,000. This contrasts sharply with India where the costs of a surrogacy arrangement normally range from $10,000 to $35,000. U Rengachary Smerdon, “Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India” (2008–09) 39 Cumberland Law Review 15, 32
17. X & Y (Foreign Surrogacy) [2008] EWHC 3030 at 8. Hedley J warned that “many pitfalls confront the couple who consider commissioning foreign surrogacy”, and that “potentially difficult conflict of law issues arise which may have wholly unintended and unforeseen consequences”. See also L Theis, N Gamble and L Ghevaert, “Re X and Y (Foreign Surrogacy): ‘A Trek Through a Thorn Forest’” (2009) 39 Family Law Journal 239
18. Ibid. See also D Howe, “International Surrogacy–A Cautionary Tale” (2008) 38 Family Law Journal 61; and D Cullen, “Surrogacy: ‘Commissioning’ Parents Not Domiciled in UK–Matters To Be Borne in Mind by Those Contemplating Surrogacy Arrangements” (2008) 32 Adoption & Fostering 1
19. See eg, the Human Fertilisation and Embryology Act 2008, s 33(1). S 33(1) that sets rules for the establishment of parenthood in cases of assisted reproduction states: “The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.”
20. This test was applied by the California Superior Court in the case of Johnson v Calvert, No X 63 31 90 (Cal Super Ct 1990). This case involved a gestational surrogacy agreement between the Calverts (the intended parents) and Anna Johnston (the surrogate mother). An embryo created from the Calverts' genetic material was implanted into Ms Johnston's uterus. When a dispute between the parties arose as to who was the legal mother of the child, the Court, focusing on genetics, concluded that the legal mother of the child was Ms Calvert. The Court held: “Anna Johnston is the gestational carrier of the child, a host in a sense…. [She] and the child are genetic hereditary strangers…. Anna's relationship to the child is analogous to that of a foster parent providing care, protection, and nurture during the period of time that the natural mother, Crispina Calvert, was unable to care for the child.”
21. This test was applied by the California Court of Appeal in the case of In Re Marriage of Buzzanca, 61 Cal App 4th 1410 (1998). In this case, the intended parents, Luanne and John Buzzanca, decided to have an embryo genetically unrelated to either of them implanted in a surrogate mother, who would carry and give birth to the child for them. After the pregnancy, the intended parents split up, and the question arose as to who were the child's legal parents. The trial court concluded that the child had no legal parents. On appeal, this decision was reversed and the Court of Appeal held that even though neither of the intended parents was genetically related to the child, they were still her legal parents given their initiating role as the intended parents in her conception and birth. It has been suggested that the rule of law formulated by the Court of Appeal in In Re Marriage of Buzzanca would help avoid the situation of a “parentless” child becoming the state's responsibility. Also, the decision extended comprehensive legal protection to couples considering the use of donor eggs and sperms/donor embryos. Finally, because of the ruling, it is no longer necessary in California for an intended mother to pursue a stepparent adoption. Free Encyclopaedia, “In re Marriage of Buzzanca–Significance”, http://law.jrank.org/pages/24481/In-re-Marriage-Buzzanca-Significance.html, accessed 30 March 2011
22. X & Y (Foreign Surrogacy) [2008] EWHC 3030. Hedley J took this case into open court precisely in order to “illustrate the sort of difficulties that currently can and do appear”
23. Under s 27 of the Human Fertilisation and Embryology Act 1990, the woman who carries the child, regardless of genetics, is treated as the legal mother, even if the surrogacy takes place outside of the UK. In addition, despite the fact that the intended father was biologically related to the twins, because the surrogate mother was married, UK law presumed her husband to be the twins' father (ibid, s 28)
24. The principle that the court must make the child's welfare its paramount consideration was further reaffirmed in Re L (a minor) [2010] EWHC 3146 (Fam). In this case, the High Court awarded parenthood to a British couple who had conceived through a surrogacy arrangement in Illinois, USA
25. In the majority of these cases, the child would have acquired the nationality of the state of the surrogate mother by dint of birth, and would have been able to leave the country on a passport issued to him/her by this state. Surrogacy Prel Doc 2011, n 9, n 39
26. Surrogacy Prel Doc 2011, ibid, [13]
27. Ibid
28. The problem of child abduction in the context of an international surrogacy arrangement surfaced in the case of W and B v H (Child Abduction: Surrogacy) [2002] 1 FLR 1008. This case involved a surrogacy agreement made in California between a Californian couple and an English surrogate. It was agreed that during the pregnancy the surrogate mother would stay in England and only return to California for the birth. A dispute, however, arose between the parties after it was discovered that the surrogate mother was carrying twins. The surrogate decided to give birth to the children in England. The couple sought an order under the inherent jurisdiction of the High Court for the summary return of the children to California under the 1980 Hague Convention on Civil Aspects of International Child Abduction. The central issue was whether, at the time immediately before the retention, the twins were habitually resident in California or in England. It is a prerequisite for the operation of the Convention that the child concerned has a habitual residence. In the instant case, however, the Court held that the children were neither habitually resident in California nor habitually resident in England. It was concluded that infants born through surrogacy have no habitual residence for the purposes of the Hague Abduction Convention. As a result, the Convention was found inapplicable to cases of international surrogacy
29. Krim, n 9, 195. See also Hedley J in X & Y (Foreign Surrogacy) [2008] EWHC 3030 at 29: “[T]he present law might encourage the less scrupulous to take advantage of the more vulnerable, unmarried surrogate mothers and to be less than frank in the arrangements that surround foreign surrogacy.”
30. J, Chernick, “Memorandum: Is there a Need to Regulate Intercountry Surrogate-Pregnancy Agreements in Private International Law?” (on file with the authors)
31. For example, Krim, n 9; Lebowitz-Dori, n 6; S Fiandaca, “In Vitro Fertilization and Embryos: The Need for International Guidelines” (1997–98) 8 Albany Law Journal of Science and Technology 337; W Davis and J Dalessio, “Reproductive Surrogacy at the Millennium: Proposed Model Legislation Regulating ‘Non-Traditional’ Gestational Surrogacy Contracts” (1999–2000) 31 McGeorge Law Review 673; Spar, n 13; and RL Lee, “New Trends in Global Outsourcing of Commercial Surrogacy: A Call for Regulation” (2009) 20 Hastings Women's Law Journal 275. See also X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) at 29
32. Hague Conference on Private International Law, “Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation of Intercountry Adoption”, [25], www.hcch.net/upload/wop/adop2010concl_e.pdf, accessed 23 March 2011 (hereinafter “Conclusions and Recommendations of the 2010 Special Commission“). The Special Commission also recommended that the Hague Conference carry out further study of the legal, especially private international law, issues surrounding international surrogacy. Ibid, [26]
33. Ibid
34. Hague Conference on Private International Law, “Council on General Affairs: Conclusions and Recommendations”, 7–9 April 2010, www.hcch.net/upload/wop/genaff2010concl_e.pdf, accessed 1 June 2011. The Council agreed to keep the issue “under review”
35. See “Conclusions and Resolutions from the Cumberland Lodge Conference”, 4, http://www.hcch.net/upload/resolutions_famlawconf09.pdf, accessed 23 March 2011. The Conference was attended by 42 judges from 23 jurisdictions
36. Surrogacy Prel Doc 2011, n 9
37. Ibid, [54]
38. Ibid
39. Ibid
40. Hague Conference on Private International Law, “Council on General Affairs and Policy of the Conference (5–7 April 2011): Conclusions and Recommendations Adopted by the Council” http://www.hcch.net/upload/wop/genaff_concl2011e.pdf, accessed 31 May 2011
41. The same approach is taken by the Adoption Convention. The Adoption Convention sets out only minimum standards that must be observed within the intercountry adoption process and Contracting States are encouraged to establish higher standards. Permanent Bureau of the Hague Conference on Private International Law, “Report and Conclusions of the Second Special Commission on the Practical Operation of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (17–23 September 2005)”, [42], http://www.hcch.net/upload/wop/adop2005_rpt-e.pdf, accessed 25 March 2011 (hereinafter “Report and Conclusions of the Second Special Commission”). See also G Parra-Aranguren, “Explanatory Report on the Convention on Protection of Children and Co-operation of Intercountry Adoption“, eg [108], [109], [113], [126], [175], [254], [259], [373], [383], [386] and [388], http://www.hcch.net/index_en.php?act=publications.details&pid=2279&dtid=3, accessed 25 March 2011 (hereinafter “Explanatory Report”)
42. See Hague Conference on Private International Law, “Conclusions of the Special Commission of June 1990 on Intercountry Adoption”, Prel Doc No 3 of August 1990, Actes et Documents de la Dix-Septième Session 10–29 May 1993, [12]
43. “Explanatory Report”, n 41, [52]
44. The Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 29 May 1993. It has rightly been pointed out that the Hague Adoption Convention itself is not an appropriate instrument to resolve problems arising from international surrogacy arrangements as some of the key requirements of the Convention cannot be met in inter national surrogacy cases. See Surrogacy Prel Doc 2011, n 9, [43]
45. Hague Conference of Private International Law, “Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption: Status Table”, http://www.hcch.net/index_en.php?act=conventions.status&cid=69, accessed 23 March 2011 (hereinafter “Status Table“)
46. “Report and Conclusions of the Second Special Commission”, n 41, [8]
47. On 19 January 1988, the Permanent Bureau of the Hague Conference submitted the subject of international co-operation in the area of intercountry adoption to the Special Commission on general affairs and policy of the Conference. See “Explanatory Report”, n 41, [1]
48. It is to be noted that the Contracting States currently include the US and many other receiving countries as well as a large number of sending countries. See “Status Table”, n 45
49. India ratified the Convention on 6 June 2003. The Convention entered into force for India on 1 October 2003. See “Status Table”, n 45
50. China ratified the Convention on 16 September 2005 and it has been in force for China since 1 January 2006. See “Status Table”, n 45
51. In particular, Brazil, Chile, Costa Rica, Ecuador, Panama, Paraguay, Peru, Uruguay and Venezuela (Member States of the Hague Conference); and Belize, Bolivia, Colombia, El Salvador, Guatemala (Non-Member States of the Hague Conference). See “Status Table”, n 45
52. “Report and Conclusions of the Second Special Commission”, n 41, [8]
53. Hague Conference on Private International Law, “Report and Conclusions of the Special Commission on the Practical Operation of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Inter-country Adoption, 28 November–1 December 2000“, [56], www.hcch.net/upload/scrpt33e2000.pdf, accessed 31 March 2011. This recommendation was reaffirmed by the 2010 Special Commission. See “Conclusions and Recommendations of the 2010 Special Commission”, n 32, [36]
54. An alternative view is that surrogacy (or more generally assisted reproduction) is an aspect of reproductive autonomy, and should be treated as a matter of contract law. S Appleton, “Adoption in the Age of Reproductive Technology” [2004] University of Chicago Legal Forum 393, 393
55. Ibid, 394
56. A, Struycken, “Surrogacy, A New Way to Become a Mother? A New PIL Issue” in K, Boele-Woelki et al (eds), Convergence and Divergence in Private International Law (Eleven International Publishing, 2010), 357
57. 537 A2d 1227. For more details on the case see n 3
58. The problem of large numbers of “children with special needs” who are waiting for families has been acknowledged on a number of occasions. See eg ‘ISS Report’ at 7–9; and “Report and Conclusions of the Second Special Commission”, n 41, [116]–[119]
59. See Appleton, n 54, 403, who suggests that adoption, that traditionally represented a “public face” of family law, has nowadays acquired a “private face” (a means of meeting private needs of childless adults)
60. In 1995, Dutch police uncovered a criminal gang responsible for luring young Polish women to act as surrogate mothers for infertile couples in the Netherlands, Belgium and Germany. The women were recruited through advertisements in Polish newspapers which promised “discretion” and “good fees” in return for their services as surrogate mothers. In the course of the investigation, the identity of a number of couples involved was established, although it was unlikely that the babies would be taken away from them. The criminals faced custodial sentences for organising surrogate motherhood for commercial gain and/or for trafficking in women. A Daruvala, “Poles Hired as Surrogate Mums in Illegal Trade”, The Independent 4 June 1995, www.independent.co.uk/news/world/poles-hired-as-surrogate-mums-in-illegal-trade-1584960.html, accessed 29 March 2011
61. Where there is clear evidence of an intention to commence a new life in another state, then the existing habitual residence will be lost and a new one acquired. Courts have accepted that acquisition of a new habitual residence may occur within a short period of time (eg Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562; Re F (A Minor) (Child Abduction) [1992] 1 FLR 548; and DeHaan v Gracia [2004] AJ No 94 (QL), [2004] ABQD 4) or even immediately (eg Bundesgericht II Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 15 novembre 2005, 5P367/2005/ast–Switzerland). Nevertheless, recent judicial developments in Europe indicate that “some degree of integration”, determined among other factors by the duration of a person's stay on the territory of an EU Member State, should be required before habitual residence can be established. Case C-523/07, A [2009] ECR I-2805 (Third Chamber). In this case, the European Court of Justice (ECJ) concluded that “habitual residence” corresponded to the place which reflected some degree of integration by the child in a social and family environment. In particular, the following facts should be taken into consideration: the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge, and the family and social relationships of the child in that state. Ibid. Even more recently, in the case of Mercredi, the ECJ concluded that in ascertaining the habitual residence of a very young child the focus should be on the place of the centre of interests of the child ascertained by the habitual residence of the custodial parent. Case C-497/10 PPU Mercredi v Chaffe, judgment of 22 December 2010, esp paras 51–56 (First Chamber)
62. Art 3(2) of the 1989 Hague Succession Convention
63. 63 This requirement reflects the over-arching principle of intercountry adoption. In particular, Art 1 of the Adoption Convention requires that intercountry adoptions “take place in the best interests of the child and with respect for his or her fundamental rights”. Similarly, the Preamble to the Convention highlights the importance of intercountry adoptions being carried out “in the best interests of the child and with respect for his or her fundamental rights”.,
64. United Nations Convention on the Rights of the Child, adopted by General Assembly resolution 44/25 of 20 November 1989. Available at http://www.ohchr.org (hereinafter “UNCRC”), Art 3(1)
65. “Explanatory Report”, n 41, [49]
66. In the context of intercountry adoption, practical measures to reinforce the best interests principle include: (1) ensuring the adoptability of the child (Art 4(a)); (2) storing information on the child and his/her biological family (Art 30); and (3) matching the child with suitable adoptive parents (Art 16(d)). See “Report and Conclusions of the Second Special Commission”, n 41, [29]
67. 67 See Arts 8 and 22 of the Adoption Convention
68. 68 See Arts 9 and 22 of the Adoption Convention
69. 69 Certain functions would not be delegable and will have to be performed exclusively by CAs. Non-delegable functions in the context of intercountry adoptions are set out in Art 7(2) of the Adoption Convention
70. “Report and Conclusions of the Second Special Commission”, n 41, [48]
71. As a useful template, relevant provisions of the Virginia statutory law could be used. According to this statute a surrogate mother must be married, must have had at least one live birth, and giving birth to another child will not pose an unreasonable risk to her physical or mental health or the health of the child produced through the surrogacy arrangement. Va Code Ann, paras 20–160(B)6 (2004)
72. 72 It is a matter of public policy of individual states to decide whether registered partners (heterosexual or homosexual), unregistered partners (heterosexual or homosexual), single women or single men have the same rights as a married couple
73. This process of “counselling” would be comparable to adoption preparation in the context of intercountry adoption. The need for proper preparation of the prospective adoptive parents was highlighted at the Second Special Commission to review the operation of the Adoption Convention. See “Report and Conclusions of the Second Special Commission”, n 41, [90]
74. Ibid, [42]
75. Ibid, [33]
76. A similar approach is adopted by the Adoption Convention. In line with this approach, “private” or “direct” adoptions (ie adoptions arranged directly between birth parents and adoptive parents, and “independent” adoptions (ie adoptions where adoptive parents are approved to adopt in the receiving state and, in the state of origin, locate a child without the involvement of a CA or accredited body in the state of origin) are considered as being incompatible with the Convention. See Art 29 of the Adoption Convention and “Conclusions and Recommendations of the 2010 Special Commission”, n 32, [22], [23]
77. 77 As a useful model, relevant provisions of the US Uniform Adoption Act could be used. The Act sets forth the following permissible categories for which payments may be made: payments for all related medical, hospital and pharmaceutical costs; travelling expenses; legal fees; counselling fees for a reasonable time before and after the birth; and also for birth mother's living expenses for up to six weeks after the birth. The Act further provides that the adoptive parents are not liable for payments if the adoption does not occur
78. However, in order to avoid over-compensation, account will have to be taken of the surrogate mother's entitlement to a maternity pay/allowance under the law of the state of her habitual residence
79. See the trial court's opinion in the case of Johnson v Calvert 19 Cal Rprt 2d 494
80. Art 33 states: “The State addressed shall provide at least the same range of enforcement methods for cases under the Convention as are available in domestic cases.”,
81. Art 34 states: “(1) Contracting States shall make available in internal law effective measures to enforce decisions under this Convention. (2) Such measures may include: (a) wage withholding; (b) garnishment from bank accounts and other sources; (c) deductions from social security payments; (d) lien on or forced social security payments; (e) tax refund withholding; (f) withholding or attachment of pension benefits; (g) credit bureau reporting; (h) denial, suspension or revocation of various licenses (for example, driving licence); (i) the use of mediation, conciliation or similar processes to bring about voluntary compliance.”,
82. 82 Art 26(1)(a) of the Adoption Convention
83. Hague Conference on Private International Law, “Report of the Special Commission of October 1994”, http://www.hcch.net/index_en.php?act=publications.details&pid=933&dtid=2, accessed 30 March 2011
84. Ibid
85. Hague Conference on Private International Law, “Outline: Hague Intercountry Adoption Convention”, http://www.hcch.net/upload/outline33e.pdf, accessed 31 March 2011
86. 86 The right to respect for one's private life is guaranteed by Art 8(1) of the European Convention on Human Rights
87. “Explanatory Report”, n 41, [512]. Additionally, Art 16(2) of the Convention allows for a possibility of not disclosing the identity of the child's biological parents by the state of origin if, “in the State of origin, these identities may not be disclosed”. Art 16(2) of the Adoption Convention
88. See Conclusions of the 2005 Special Commission (“Report and Conclusions of the Second Special Commission”, n 41, [17]), reaffirmed by the 2010 Special Commission (“Conclusions and Recommendations of the 2010 Special Commission”, n 32, [19])
89. See eg Browne-Barbour, n 11, 467. According to Browne-Barbour, surrogacy arrangements should uniformly be regarded as void and unenforceable
90. At a national level, evidence can be drawn from China where, following a complete ban on surrogacy arrangements, the ‘surrogacy market’ moved underground. See Browne-Barbour, ibid, 462