A child born to a surrogate is in an uncertain legal situation
Especially when born in international surrogacy arrangements, the children born from surrogacy may find themselves in the middle of a legal battle.
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Surrogacy contracts are big business, worth roughly $6 billion globally per year. While intended parents and surrogates can record how they want the arrangement to work, these aren’t legally enforceable. In the UK, a Parental order can be applied for if one or both of the intended parents are genetically related to the child. In the US, states range from Michigan, which forbids all surrogacy agreements, to California which permits commercial surrogacy, regularly enforces gestational surrogacy contracts, and makes it possible for all intended parents, regardless of marital status or sexual orientation, to establish their legal parentage prior to the birth and without adoption proceedings. The unregulated terrain in USA at federal level leading to "jurisdictional chaos." Issues especially arise when surrogates refuse to transfer custody. Additionally, the pregnancy of surrogates is plagued with questions about the child. Who is legally responsible? What if the intending parents split up? What if they change their minds or die? What if the baby is premature or has health problems? What if the baby has health problems resulting from the surrogate's drug use or alcohol intake during pregnancy? Pre-existing family law is inadequate to address surrogacy, in part because of the multiple parents, and in part because of the breakdown in traditional parenting functions. There are implications for children’s citizenship, which should be their country of birth, but some countries won’t recognised a child born under a surrogacy agreement. Generally courts decide on individual cases according to what they decide is the best interests of the child.
Rejecting the premises
Allen, A. (2018) Surrogacy and Limitations to Freedom of Contract: Toward Being More Fully Human. Harvard Journal of Law & Public Policy, 41(3) Yehezkel Margalit, In Defense of Surrogacy Agreements: A Modern Contract Law Perceptive, 20 Wm. & Mary J. Women & L. 423 (2014), https://scholarship.law.wm.edu/wmjowl/vol20/iss2/6 Stark, B. Transnational Surrogacy and International Human Rights Law. 18 ILSA J. Int'l & Comp. L. 369 (2011-2012)https://scholarlycommons.law.hofstra.edu/faculty_scholarship/630 Baker, B. (1996) A case for permitting altruistic surrogacy. Hypatia, 11(2), 34-48 Krawiec and Busby, K. & Vun, D. (2009) Revisiting The Handmaid's Tale: Feminist Theory Meets Empirical Research on Surrogate Mothers, 26 CAN. J. FAM. L. 13(44). Kristinsson, S. (2016) Legalizing altruistic surrogacy in response to evasive travel? An Icelandic proposal. Reproductive Biomedicine & Society Online, 3, 109-119. https://doi.org/10.1016/j.rbms.2016.12.003